UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 31, 1997
GENERAL MILLS, INC.
(Exact name of registrant as specified in its charter)
Delaware 1-1185 41-0274440
(State of Incorporation) (Commission File Number)
(IRS Employer Identification No.)
Number One General Mills Boulevard
(Mail: P.O. Box 1113)
Minneapolis, Minnesota 55440
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (612) 540-2311
Item 2. Acquisition or Disposition of Assets.
On January 31, 1997, General Mills completed the acquisition
of the branded ready-to-eat cereal and snack businesses of Ralcorp
Holdings, Inc., following approval by Ralcorp shareholders.
The purchase price of $570 million was paid through the
issuance of $355 million in General Mills common stock (0.163 share
of General Mills common stock for each share of Ralcorp common stock
outstanding), equaling approximately 5.4 million shares, and the
assumption by General Mills of $215 million of Ralcorp debt.
Item 7. Financial Statements and Exhibits.
(c) Exhibits
2.1. Registrant's Registration Statements on Form S-4 (File
Nos. 333-18849 and 333-20429) effective December 27, 1996 and January
24, 1997, are incorporated by reference herein.
2.2. Second and Third Amendments to the Agreement and Plan of
Merger dated as of January 29, 1997 and January 31, 1997,
respectively, by and among Ralcorp Holdings, Inc., General Mills,
Inc. and General Mills Missouri, Inc.
4.1. Copy of Indenture dated September 23, 1994 between
Ralcorp Holdings, Inc. as Issuer and The First National Bank of
Chicago as Trustee, as supplemented by First Supplemental Indenture
dated as of January 31, 1997 among Ralcorp Holdings, Inc. and General
Mills, Inc. and The First National Bank of Chicago, as Trustee.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
GENERAL MILLS, INC.
Dated: February 10, 1997 By: /s/ Siri S. Marshall
Siri S. Marshall
Senior Vice President and
General Counsel
SECOND AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
BY AND AMONG RALCORP HOLDINGS, INC.,
GENERAL MILLS, INC. AND GENERAL MILLS MISSOURI, INC.
This Second Amendment to Agreement and Plan of Merger is dated
as of January 29, 1997 by and among Ralcorp Holdings, Inc., a Missouri
corporation (the "Company"), General Mills, Inc., a Delaware corporation (the
"Acquiror"), and General Mills Missouri, Inc., a Missouri corporation and a
wholly-owned subsidiary of Acquiror ("Merger Sub").
WHEREAS, the parties hereto are parties to an Agreement and Plan
of Merger dated as of August 13, 1996, as amended by that certain Amendment
to Agreement and Plan of Merger dated as of October 25, 1996 (the "Merger
Agreement");
WHEREAS, pursuant and subject to the terms and conditions of the
Merger Agreement, the Company has agreed to take all necessary action to
redeem the common stock purchase rights ("Rights") associated with the
Company Common Stock (as defined in the Merger Agreement) prior to the
Effective Time (as defined in the Merger Agreement);
WHEREAS, in order to avoid certain unnecessary administrative
burdens in connection with the redemption of the Rights, the parties desire
to amend the Merger Agreement to reflect that New Ralcorp Holdings, Inc., a
Missouri corporation and a wholly owned subsidiary of the Company ("New
Ralcorp") shall, prior to the Distribution (as defined in the Merger
Agreement), assume the obligation of the Company to pay the amount required
to be paid by the Company to the holders of the Rights to redeem the Rights,
to the extent such amount remains unpaid at the Effective Time (the "Rights
Payment");
WHEREAS, the parties also desire to clarify the sequential order
in which the transactions contemplated by the Merger Agreement and the
Reorganization Agreement (as defined in the Merger Agreement) shall occur on
the Closing Date (as defined in the Merger Agreement); and
WHEREAS, the parties also desire to amend Schedule 2.3 to the
Merger Agreement in the manner set forth hereinbelow.
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained in the Merger Agreement and
this Second Amendment, the parties hereto agree as follows:
1. Prior to the Distribution, New Ralcorp shall assume the
obligation of the Company to make the Rights Payment to the holders of the
Rights entitled to receive payment therefor.
2. The parties acknowledge and agree that, upon such assumption
by NewRalcorp and notwithstanding the provisions of Section 2. l(b) of the
Merger Agreement to the contrary, the Rights Payment shall not be deducted
from the amount of $570,000,000 in arriving at the Conversion Number (as
defined in the Merger Agreement).
3. The parties also acknowledge and agree that the Rights
Payment shall in no way affect the calculation of the Closing Date Net Asset
Value (as defined in the Merger Agreement); it being hereby understood that
the Closing Date Balance Sheet (as defined in the Merger Agreement) shall not
include any accrual related to the Rights Payment.
4. The parties further acknowledge and agree that the
transactions contemplated by the Merger Agreement and the Reorganization
Agreement shall occur in the following sequential order on the Closing Date:
(i). Internal Merger (as defined in the Merger Agreement); then
(ii). Branded Contribution (as defined in the Merger Agreement); then
(iii).Internal Spinoff (as defined in the Merger Agreement); then
(iv). Distribution; then
(v). Redemption of Rights; and then
(vi). Merger (as defined in the Merger Agreement).
5. Schedule 2.3 to the Merger Agreement is hereby amended in its
entirety to read as set forth on Exhibit A attached hereto.
6. Except as expressly amended hereby, the Merger Agreement
shall remain in full force and effect.
IN WITNESS WHEREOF, Acquiror, Merger Sub and the Company have
caused this Agreement to be signed by their respective officers thereunto
duly authorized, all as of the date first written above.
GENERAL MILLS, INC.
By: /s/ T. J. Brown
Name: T. J. Brown
Title: Vice President
GENERAL MILLS MISSOURI, INC.
By: /s/ T. J. Brown
Name: T. J. Brown
Title: Vice President
RALCORP HOLDINGS, INC.
By: /s/ J. R. Micheletto
Name: J. R. Micheletto
Title: Chief Executive Officer and
President
THIRD AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
BY AND AMONG RALCORP HOLDINGS, INC.,
GENERAL MILLS, INC. AND GENERAL MILLS MISSOURI, INC.
This Third Amendment to Agreement and Plan of Merger is dated as
of January 31, 1997 by and among Ralcorp Holdings, Inc., a Missouri
corporation (the "Company"), General Mills, Inc., a Delaware corporation (the
"Acquiror"), and General Mills Missouri, Inc., a Missouri corporation and a
wholly-owned subsidiary of Acquiror ("Merger Sub").
WHEREAS, the parties hereto are parties to an Agreement and Plan
of Merger dated as of August 13, 1996, as amended by that certain Amendment
to Agreement and Plan of Merger dated as of October 25, 1996 and as amended
by that certain Second Amendment to Agreement and Plan of Merger dated as of
January 29, 1997 (the "Merger Agreement");
WHEREAS, the parties desire to amend the Merger Agreement as
hereinafter set forth.
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained in the Merger Agreement and
this Second Amendment, the parties hereto agree as follows:
1. Section 1.5(a) of the Merger Agreement is hereby amended by
deleting the words "Merger Sub" and substituting therefor the word "Company."
2. The parties hereto agree that at the Effective Time the 1,000
shares of common stock of Merger Sub owned by Acquiror (being all of the
issued and outstanding shares of Merger Sub) shall be cancelled and the
Surviving Corporation shall issue to Acquiror 1,000 shares of common stock in
replacement thereof
3. Acquiror hereby agrees to make all appropriate filings to
evidence the reduction in the stated capital of the Surviving Corporation as
a result of the Merger.
IN WITNESS WHEREOF, Acquiror, Merger Sub and the Company have
caused this Agreement to be signed by their respective officers thereunto
duly authorized, all as of the date first written above.
GENERAL MILLS, INC.
By: /s/ T. J. Brown
Name: T. J. Brown
Title: Vice President
GENERAL MILLS MISSOURI, INC.
By: /s/ T. J. Brown
Name: T. J. Brown
Title: Vice President
RALCORP HOLDINGS, INC.
By: /s/ Robert W. Lockwood
Name: Robert W. Lockwood
Title: Vice President, General Counsel
and Secretary
RALCORP HOLDINGS, INC.
Issuer
AND
THE FIRST NATIONAL BANK
OF CHICAGO
Trustee
INDENTURE
Dated as of September 23, 1994
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of September 23, 1994
Trust Indenture Act Section Indenture Section 1/
310 (a) (1) (2) (5) 6.9
(a) (3) and (4) Not Applicable
(b) 6.8, 6.10, 11.4
(c) Not Applicable
311 (a) *
(b) *
(c) Not Applicable
312 (a) *
(b) *
(c) *
313 (a) *
(b) *
(c) 4.3
(d) 4.3
314 (a) 4.2
(b) Not Applicable
(c) *
(d) Not Applicable
(e) *
(f) *
315 (a) *
(b) *
(c) *
(d) *
(e) *
316 (a) (1) *
(a) (2) Not Applicable
(b) 5.7
(c) Not Applicable
317 (a) 5.2
(b) 3.4
318 11.7
______________________
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
1/ Provisions marked by an asterisk are not included in the Indenture as
permitted by the Trust Indenture Reform Act of 1990.
<PAGE>
TABLE OF CONTENTS
PAGE
PARTIES 1
RECITALS 1
Authorization of Indenture 1
Compliance with Legal Requirements 1
Purpose of and Consideration for Indenture 1
ARTICLE ONE
Definitions
Section 1.1 Certain Terms Defined 1
Attributable Debt 1
Board of Directors 2
Brussels Business Day 2
Business Day 2
Capitalized Lease Obligations 2
Commission 2
Component Currency 2
Consolidated Net Equity 2
Consolidated Net Tangible Assets 2
Consolidated Total Assets 2
Conversion Date 2
Corporate Trust Office 2
Coupon 2
Coupon Security 2
Credit Agreement 3
Defeasance 3
Depositary 3
Dollar 3
Dollar Equivalent of the ECU 3
Dollar Equivalent of the Foreign Currency 3
ECU 3
European Communities 3
Events of Default 3
Exchange Rate Officer's Certificate 3
Foreign Currency 3
Fully Registered Security 3
GAAP 3
Global Security 3
Guaranty Obligations 4
Holder, Holder of Securities, Securityholder 4
Indebtedness 4
Indenture 4
Investment 4
Issuer 4
Issuer Request or Issuer Order 4
Market Exchange Rate 4
Mortgage 4
Officers' Certificate 4
Official ECU Exchange Rate 4
Opinion of Counsel 5
Original issue date 5
Outstanding 5
Paying Agent 5
Permitted Lien 5
Person 5
Place of Payment 5
Principal 5
Principal Property 5
Registered Holder 5
Registered Security 6
Responsible Officer 6
Restricted Subsidiary 6
Sale and Lease-Back Transaction 6
Security, Securities 6
Specified Amount 6
Stated Maturity 6
Subsidiary 6
Trustee 6
Trust Indenture Act 6
United States of America 6
Unregistered Security 6
Valuation Date 6
vice president 6
ARTICLE TWO
Securities
Section 2.1 Forms Generally 7
Section 2.2 Form of Trustee's Certificate of Authentication 7
Section 2.3 Amount Unlimited; Issuable in Series 7
Section 2.4 Authentication and Delivery of Securities 8
Section 2.5 Execution of Securities 9
Section 2.6 Certificate of Authentication 10
Section 2.7 Denomination and Date of Securities; Payments of
Interest 10
Section 2.8 Registration, Transfer and Exchange 12
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities 13
Section 2.10 Cancellation of Securities; Destruction Thereof 14
Section 2.11 Temporary Securities 14
Section 2.12 Currency and Manner of Payments in Respect of
Securities 15
Section 2.13 Compliance with Certain Laws and Regulations 18
Section 2.14 Securities Issuable in the Form of a Global Security 18
Section 2.15 Appointment of Agents with Respect to Certain
Calculations 19
ARTICLE THREE
Covenants of the Issuer
Section 3.1 Payment of Principal and Interest 20
Section 3.2 Offices for Payments, etc. 20
Section 3.3 Appointment to Fill a Vacancy in Office of Trustee 20
Section 3.4 Paying Agents 20
Section 3.5 Written Statement to Trustee 21
Section 3.6 Limitation on Liens 21
Section 3.7 Limitation on Sale and Lease-Back Transactions 22
Section 3.8 Additional Amounts 23
Section 3.9 Limitations on Restricted Subsidiary Debt 24
Section 3.10 Corporate Existence 24
Section 3.11 Waiver of Certain Covenants 24
ARTICLE FOUR
Securityholders' Lists and Reports by the
Issuer and the Trustee
Section 4.1 Securityholders Lists 25
Section 4.2 Reports by the Issuer 25
Section 4.3 Reports by the Trustee 25
ARTICLE FIVE
Remedies Of The Trustee And Securityholders
On Event Of Default
Section 5.1 Event of Default Defined; Acceleration of 25
Maturity; Waiver of Default
Section 5.2 Collection of Indebtedness by Trustee; 27
Trustee May Prove Debt
Section 5.3 Application of Proceeds 28
Section 5.4 Suits for Enforcement
Section 5.5 Restoration of Rights on Abandonment of Proceedings 29
Section 5.6 Limitations on Suits by Securityholders 29
Section 5.7 Unconditional Right of Securityholders to 30
Institute Certain Suits
Section 5.8 Powers and Remedies Cumulative; Delay or 30
Omission Not Waiver of Default
Section 5.9 Control by Securityholders 30
Section 5.10 Waiver of Past Defaults 31
Section 5.11 Trustee to Give Notice of Default, But May 31
Withhold in Certain Circumstances
Section 5.12 Right of Court to Require Filing of Undertaking 31
to Pay Costs
ARTICLE SIX
Concerning the Trustee
Section 6.1 Duties and Responsibilities of the Trustee; During 32
Default; Prior to Default
Section 6.2 Certain Rights of the Trustee 33
Section 6.3 Trustee Not Responsible for Recitals, Disposition of 33
Securities or Application of Proceeds Thereof
Section 6.4 Trustee and Agents May Hold Securities; 34
Collections, etc.
Section 6.5 Moneys Held by Trustee 34
Section 6.6 Compensation and Indemnification of Trustee and its 34
Prior Claim
Section 6.7 Right of Trustee to Rely on Officers' Certificate, etc.34
Section 6.8 Disqualification; Conflicting Interests 35
Section 6.9 Persons Eligible for Appointment as Trustee 35
Section 6.10 Resignation and Removal; Appointment of 35
Successor Trustee
Section 6.11 Acceptance of Appointment by Successor Trustee 36
Section 6.12 Merger, Conversion, Consolidation or Succession to 37
Business of Trustee
ARTICLE SEVEN
Concerning the Securityholders
Section 7.1 Evidence of Action Taken by Securityholders 37
Section 7.2 Proof of Execution of Instruments and of Holding 38
of Securities
Section 7.3 Holders to be Treated as Owners 38
Section 7.4 Securities Owned by Issuer Deemed Not Outstanding 38
Section 7.5 Right of Revocation of Action Taken 38
ARTICLE EIGHT
Supplemental Indentures
Section 8.1 Supplemental Indentures Without Consent of 39
Securityholders
Section 8.2 Supplemental Indentures With Consent of 40
Securityholders
Section 8.3 Effect of Supplemental Indenture 40
Section 8.4 Documents to Be Given to Trustee 41
Section 8.5 Notation on Securities in Respect of Supplemental 41
Indentures
ARTICLE NINE
Consolidation, Merger, Sale or Conveyance
Section 9.1 Issuer May Consolidate, Etc., on Certain Terms 41
Section 9.2 Successor Corporation Substituted 41
Section 9.3 Opinion of Counsel to Trustee 42
ARTICLE TEN
Satisfaction and Discharge of Indenture; Unclaimed Moneys
Section 10.1 Issuer's Option to Effect Defeasance or 42
Covenant Defeasance
Section 10.2 Defeasance and Discharge 42
Section 10.3 Covenant Defeasance 42
Section 10.4 Conditions to Defeasance or Covenant Defeasance 43
Section 10.5 Deposited Money and U.S. Government Obligations 44
to be Held in Trust; Miscellaneous Provisions
Section 10.6 Reinstatement 45
Section 10.7 Return of Moneys Held by Trustee 45
ARTICLE ELEVEN
Miscellaneous Provisions
Section 11.1 Incorporators, Stockholders, Officers and 45
Directors of Issuer Exempt from Individual
Liability
Section 11.2 Provisions of Indenture for Sole Benefit 45
of Parties and Securityholders
Section 11.3 Successors and Assigns of Issuer Bound 46
by Indenture
Section 11.4 Notices and Demands on Issuer, Trustee and 46
Securityholders
Section 11.5 Officers' Certificates and Opinions of Counsel; 46
Statements to be Contained Therein
Section 11.6 Payments Due on Saturdays, Sundays and Holidays 47
Section 11.7 Conflict of Any Provision of Indenture with 47
Trust Indenture Act of 1939
Section 11.8 New York Law to Govern 47
Section 11.9 Counterparts 47
Section 11.10 Effect of Headings 47
ARTICLE TWELVE
Redemption of Securities and Sinking Funds
Section 12.1 Applicability of Article 47
Section 12.2 Notice of Redemption; Partial Redemptions 48
Section 12.3 Payment of Securities Called for Redemption 48
Section 12.4 Exclusion of Certain Securities from Eligibility 49
for Selection for Redemption
Section 12.5 Mandatory and Optional Sinking Funds 49
Section 12.6 Repayment at the Option of the Holders 51
ARTICLE THIRTEEN
GUARANTEE
Section 13.1 Issuer's Option to Have Securities Guaranteed 51
Section 13.2 Subsidiary Guarantors 51
Section 13.3 Subsidiary Guarantee 51
Section 13.4 Execution and Delivery of Guarantee 53
Section 13.5 Guarantors May Consolidate, Etc. on Certain 53
Terms
Section 13.6 "Trustee" to Include Paying Agent 54
Testimonium 54
Signatures 54
Acknowledgments 56
Exhibit A 57
THIS INDENTURE, dated as of September 23, 1994, among RALCORP
HOLDINGS, INC., a Missouri corporation (the "Issuer"), Beech-Nut
Nutrition Corporation, Bremner, Inc., Keystone Resorts Management,
Inc., and Ralston Foods, Inc. (as Guarantors) and The First National
Bank of Chicago, a national banking association organized and existing
under the laws of the United States of America, as Trustee (the
"Trustee"),
WITNESSETH:
WHEREAS, the Issuer has duly authorized the issue from time to
time of its unsecured 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 thereof, the Issuer 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 Issuer and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the
respective holders from time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except
as otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in
this Section. All other terms used in this Indenture that are defined
in the Trust Indenture Act or the definitions of which in the
Securities Act of 1933 are referred to in the Trust Indenture Act,
including terms defined therein by reference to the Securities Act of
1933, or the Investment Company Act of 1940 (except as herein otherwise
expressly provided or unless the context otherwise clearly requires),
shall have the meanings assigned to such terms in said Trust Indenture
Act and in said Securities Act as in force at the date of this
Indenture. All accounting terms used herein and not expressly defined
shall have the meanings assigned to such terms in accordance with
generally accepted accounting principles, and the term "GAAP" means
such accounting principles as are generally accepted in the United
States at the time of any computation. The words "herein", "hereof" and
"hereunder" and other words of similar import refer to this Indenture
as a whole, as supplemented and amended from time to time, and not to
any particular Article, Section or other subdivision. The terms defined
in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular.
"Attributable Debt" means, as to any particular lease under which
the Company or any Restricted Subsidiary is at the time liable, at any
date as of which the amount thereof is to be determined, the total net
amount of rent required to be paid by the Company or any Restricted
Subsidiary under such lease during the remaining term thereof,
discounted from the respective due dates thereof to such date at the
weighted average rate per annum borne by the Securities compounded
annually. The net amount of rent required to be paid under any such
lease for any such period shall be the aggregate amount of the rent
payable by the lessee with respect to such period after excluding
amounts required to be paid on account of maintenance and repairs,
insurance, taxes, assessments, water rates and similar charges. In the
case of any lease which is terminable by the lessee upon the payment of
a penalty, such net amount shall also include the amount of such
penalty, but not rent shall be considered as required to be paid under
such lease subsequent to the first date upon which it may be so
terminated.
"Board of Directors" means either the Board of Directors or any
committee of the Board of Directors of the Issuer duly authorized to
act hereunder.
"Brussels Business Day" means any day other than a day on which
banking institutions in Brussels, Belgium, are authorized or required
by law to close.
"Business Day" means, with respect to any Place of Payment,
except as may otherwise be provided in the form of Securities of any
particular series, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which the Corporate Trust Office or banking
institutions in that Place of Payment are authorized or obligated by
law or executive order to close.
"Capitalized Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under a lease
that is required to be capitalized for financial reporting purposes in
accordance with GAAP, and the amount of such obligation shall be the
capitalized amount thereof determined in accordance with GAAP.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange
Act of 1934, as amended, or if at any time after the execution and
delivery of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties on such date.
"Component Currency" has the meaning specified in Section 2.12.
"Consolidated Equity" means, at any time for the Issuer and its
Subsidiaries, an amount calculated as the Issuer's equity determined on
a consolidated basis for the Issuer and its Subsidiaries in conformity
with GAAP.
"Consolidated Net Earnings" means, at any time, net earnings
after taxes for the Company and its subsidiaries, on a consolidated
basis, as determined in accordance with GAAP.
"Consolidated Net Tangible Assets" means the aggregate of assets
(less applicable reserves and other properly deductible items) after
deducting therefrom all current liabilities for (i) notes and loans
payable, (ii) current maturities of long-term debt and (iii) current
maturities of obligations under capital leases, less all goodwill,
trade names, trademarks, patents, unamortized debt discount and other
like intangibles, all as set forth on the most recent balance sheet of
the Company and its Subsidiaries and computed in accordance with GAAP.
"Consolidated Revenues" means, at any time, net sales of the
Company and its subsidiaries, on a consolidated basis, as determined in
accordance with GAAP.
"Consolidated Total Assets" means, at any time, all items which,
in accordance with GAAP, would be classified as assets on a
consolidated balance sheet of the Issuer and its Subsidiaries.
"Conversion Date" has the meaning specified in Section 2.12.
"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular
time, be principally administered, which office is, at the date as of
which this Indenture is dated, located at One First National Plaza,
Suite 0126, Chicago, Illinois 60670-0126.
"Coupon," means any interest coupon appertaining to any Security.
"Coupon Security" means any Security authenticated and delivered
with one or more Coupons appertaining thereto.
"Credit Agreement" means the Credit Agreement dated March 30,
1994 entered into by Ralston Purina Company with a syndicate of
commercial banks and assigned to the Issuer and comprised of a $200
million revolving credit arrangement and a $250 million term loan both
with a maturity date of March 31, 1999.
"Defeasance" has the meaning specified in Section 10.2.
"Depositary" means, unless otherwise specified by the Issuer
pursuant to either Section 2.3 or 2.14, with respect to Securities of
any series issuable or issued as a Global Security, The Depository
Trust Company, New York, New York, or any successor thereto registered
under the Securities and Exchange Act of 1934, as amended, or other
applicable statute or regulation.
"Dollar" means the coin or currency of the United States of
America which as of the time of payment is legal tender for the payment
of public and private debts.
"Dollar Equivalent of the ECU" has the meaning specified in
Section 2.12.
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 2.12.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy
Community.
"Event of Default" means any event or condition specified as such
in Section 5.1.
"Exchange Rate Officer's Certificate" means a telex or a
certificate setting forth the applicable Official ECU Exchange Rate and
the Dollar or Foreign Currency amounts payable on the basis of such
Official ECU Exchange Rate in respect of the principal of and interest
on Registered Securities, sent (in the case of a telex) or signed (in
the case of a certificate) by the treasurer or any assistant treasurer
of the Issuer, and delivered to the Trustee.
"Foreign Currency" means a currency issued by the government of
any country other than the United States.
"Fully Registered Security" means any Security registered as to
principal and interest, if any.
"GAAP" means generally accepted accounting principles in the
United States at the time of any computation.
"Global Security" means a Security issued to evidence all or a
part of any series of Securities which is executed by the Issuer and
authenticated and delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction, all in accordance with this
Indenture and pursuant to an Issuer Order, which shall be registered in
the name of the Depositary or its nominee.
"Guarantee" means, individually and collectively, the guarantees
given by the Guarantors pursuant to Article Thirteen, including a
notation in the Securities substantially in the form attached hereto as
Exhibit A.
"Guarantee Date" means the date of the execution and delivery of
a Guarantee.
"Guarantee Obligations" shall mean, with respect to any Person,
without duplication, any obligations of such Person (other than
endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) guaranteeing or intended to
guarantee any Indebtedness of any other Person in any manner, whether
direct or indirect.
"Guarantor" means any Subsidiary (or successor of such
Subsidiary) of the Company which executes a Guarantee.
"Holder", "Holder of Securities", "Securityholder" or other
similar terms mean the holder of an Unregistered Security or a
Registered Holder of a Registered Security and, when used with respect
to any Coupon, means the holder thereof.
"Indebtedness", with respect to any person, means (i) all
indebtedness, of such Person for borrowed money, (ii) all assets or
services which in accordance with GAAP would be shown to be a liability
of such Person (or on the liability side of a balance sheet of such
Person), (iii) indebtedness of such person created or arising under any
conditional sale or title retention agreement, (iv) the principal
portion of all obligations of such person under Capital Leases, (v) the
maximum available amount of all letters of credit or acceptances issued
or created for the account of such Person, (vi) all Guaranty
Obligations of such Person with respect to Indebtedness of another
entity, (vii) all Indebtedness of another entity secured by a Lien on
any Property of such person, whether or not such Indebtedness has been
assumed by such person and (viii) all Indebtedness of any partnership
or joint venture (except for any such Indebtedness with respect to
which recourse by the holder thereof is limited to the assets of such
partnership or joint venture) where such person is a general partner,
net of any assets of such partnership or joint venture.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so
amended or supplemented or both, and shall include the forms and terms
of particular series of Securities established as contemplated
hereunder.
"Issuer" means Ralcorp Holdings, Inc., and, subject to Article
Nine, its successors and assigns.
"Issuer Request" or "Issuer Order" means a written request or
order signed in the name of the Issuer by its Chairman of the Board,
its Vice Chairman of the Board, a Chief Executive Officer, its
President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"Market Exchange Rate" has the meaning specified in Section 2.12.
"Mortgage" has the meaning specified in Section 3.6.
"Officers' Certificate" means a certificate signed by the
president or any vice president and by the treasurer, secretary or an
assistant secretary of the Issuer, and delivered to the Trustee. Each
such certificate shall include the statements provided for in Section
11.5.
"Official ECU Exchange Rate" applicable to any currency with
respect to any payment to be made hereunder means the exchange rate
between the ECU and such currency reported by the Commission of the
European Communities (currently based on the rates in effect at 2:30
p.m., Brussels time, on the relevant exchange markets) or if such
exchange rate ceases to be so reported, then such exchange rate shall
be determined by the Trustee using, in its sole discretion and without
liability on its part, quotations from one or more major banks in New
York City or such other quotations as the Trustee shall deem
appropriate, on the applicable record date.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Issuer. Each such
opinion shall include the statements provided for in Section 11.5, if
and to the extent required hereby.
"Original issue date" of any Security (or portion thereof) means
the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued
(directly or indirectly) on registration of transfer, exchange or
substitution.
"Outstanding", when used with reference to Securities, shall,
subject to the provisions of Section 7.4, mean, as of any particular
time, all Securities authenticated and delivered by the Trustee under
this Indenture, except
(a) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other
than the Issuer) or shall have been set aside, segregated and held in
trust by the Issuer for the holders of such Securities (if the Issuer
shall act as its own paying agent), provided that if such Securities,
or portions thereof, are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving
such notice; and
(c) Securities in substitution for which other Securities shall
have been authenticated and delivered, or which shall have been paid,
pursuant to the terms of Section 2.9 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented
that such Security is held by a person in whose hands such Security is
a legal, valid and binding obligation of the Issuer).
"Paying Agent" means any Person (which may include the Issuer)
authorized by the Issuer to pay the principal of or interest, if any,
on any Security on behalf of the Issuer.
"Permitted Lien" has the meaning specified in Section 3.6.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of
any series, means the place or places where the principal of and
interest, if any, on the Securities of that series are payable as
specified pursuant to Section 3.2.
"Principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and
premium, if any".
"Principal Property" means any real property, manufacturing
plant, processing plant, office building, warehouse or other physical
facility, or any other like depreciable or depletable asset of the
Company or any Subsidiary, whether owned at the date of this Indenture
or thereafter acquired, with a gross book value in excess of 2% of
Consolidated Net Tangible Assets, other than properties that in the
opinion of the Board of Directors of the Issuer are not of material
importance to the total business conducted by the Issuer and its
Restricted Subsidiaries, as a whole.
"Registered Holder" when used with respect to a Registered
Security means the person in whose name such Security is registered in
the Security register.
"Registered Security" means any Security registered in the
Security register.
"Responsible Officer" when used with respect to the Trustee shall
mean any officer in the Corporate Trust Services Division (or any
successor group) of the Trustee including any vice president, assistant
vice president, assistant secretary, or any other officer or assistant
officer of the Trustee customarily performing functions similar to
those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred at the
Corporate Trust Office because of his or her knowledge of and
familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary of the Issuer
substantially all of the assets of which are located in the United
States (excluding territories or possessions).
"Sale and Lease-Back Transaction" has the meaning specified in
Section 3.7.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture, or, as the case may be, Securities that have
been authenticated and delivered under this Indenture.
"Specified Amount" has the meaning specified in Section 2.12.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of
such Security or such installment of principal or interest is due and
payable.
"Subsidiary" means any corporation more than 50% of whose voting
stock is at the time owned by the Issuer directly or indirectly by or
through Subsidiaries, and (ii) any partnership, association, joint
venture or other entity in which the Issuer directly or indirectly
through Subsidiaries has more than 50% equity interest at any time.
The term "'voting stock" means outstanding shares of stock having
voting power for the election of directors, whether at all times or
only so long as no senior class of stock has such voting power because
of default in dividends or some other default.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, any
successor trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, and as in force at
the date as of which this Indenture was originally executed.
"United States of America" means the fifty states constituting
the United States of America as of the date of this Indenture.
"Unregistered Security" means any Security not registered as to
principal.
"Valuation Date" has the meaning specified in Section 2.12.
"vice president" when used with respect to the Issuer or the
Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title of "vice
president".
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series and
the Coupons, if any, shall be substantially in such form or forms (not
inconsistent with this Indenture) as shall be established by or
pursuant to a resolution of the Board of Directors or in one or more
indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture (the provisions of which shall
be appropriate to reflect the terms of each series of Securities,
including the currency or denomination, which may be Dollars, Foreign
Currency or ECU) and may have imprinted or otherwise reproduced thereon
such legend or legends, not inconsistent with the provisions of this
Indenture, as may be required to comply with any law or with any rules
or regulations pursuant thereto, or with any rules of any securities
exchange or to conform to general usage, all as may be determined by
the officers executing such Securities and Coupons, if any, as
evidenced by their execution of the Securities and Coupons, if any.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons, if any.
The Guarantees, if any, to be endorsed on the Securities of any
series shall be substantially in the form attached hereto as Exhibit A.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
The First National Bank of Chicago,
as Trustee
By:______________________________
Authorized Officer
SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered
under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall
be established in or pursuant to a resolution of the Board of Directors
and set forth in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of
Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of, transfer of, or in exchange for,
or in lieu of, other Securities of the series pursuant to
Sections 2.8, 2.9, 2.11, 2.14 or 12.3);
(3) the date or dates on which the principal of the
Securities of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, the date or dates from which such interest
shall accrue, the interest payment dates on which such interest
shall be payable and the record dates for the determination of
Holders to whom interest is payable;
(5) the place or places where the principal and interest on
Securities of the series shall be payable (if other than as
provided in Section 3.2);
(6) the right, if any, of the Issuer to redeem, purchase or
repay Securities of the series, the price or prices at which, the
period or periods within which and the terms and conditions upon
which Securities of the series may be redeemed, in whole or in
part, at the option of the Issuer, pursuant to any sinking fund
or otherwise;
(7) the obligation, if any, of the Issuer to redeem,
purchase or repay Securities of the series pursuant to any
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 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) the issuance as Registered Securities or Unregistered
Securities or both, and the rights of the Holders to exchange
Unregistered Securities for Registered Coupon Securities or Fully
Registered Securities of the series or to exchange Registered
Securities of the series for Unregistered Securities of the
series and the circumstances under which any such exchanges, if
permitted, may be made;
(9) if other than denominations of $1,000 and any multiple
thereof, the denominations, which may be in Dollars, any Foreign
Currency or ECU, in which Securities of the series shall be
issuable;
(10) whether the Securities of the series shall be issued
in whole or in part in the form of a Global Security or
Securities; the terms and conditions, if any, upon which such
Global Security or Securities may be exchanged in whole or in
part for other individual Securities; and the Depositary for such
Global Security or Securities;
(11) any addition to or change in (a) the Events of Default
or (b) covenants set forth in Article Three which applies to any
Securities of the series and any change in the right of the
Trustee or the requisite Holders of such Securities to declare
the principal amount thereof due and payable pursuant to Section
5.1.
(12) any other terms or conditions upon which the
Securities of the series are to be issued (which terms shall not
be inconsistent with the provisions of this Indenture);
(13) any trustees, authenticating or paying agents,
transfer agents or registrars or any other agents with respect to
the Securities of such series; and
(14) whether the Securities of the series shall be entitled
to the benefit of the Guarantees set forth in Article Thirteen.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to such resolution of the Board of Directors or in any such
indenture supplemental hereto. All Securities of any one series need
not be issued at the same time, and unless otherwise provided, a series
may be reopened for issuances of additional Securities of such series.
SECTION 2.4 Authentication and Delivery of Securities. At any
time and from time to time after the execution and delivery of this
Indenture, the Issuer may deliver Securities of any series having
attached thereto appropriate Coupons, if any, executed by the Issuer to
the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver such Securities to or upon the Issuer Order
without any further action by the Issuer. In authenticating such
Securities and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled
to receive and (subject to Section 6.1) shall be fully protected in
relying upon:
(1) a certified copy of any resolution or resolutions of
the Board of Directors authorizing the action taken pursuant to
the resolution or resolutions delivered under clause (2) below;
(2) a copy of any resolution or resolutions of the Board of
Directors relating to such series, in each case certified by the
secretary or an assistant secretary of the Issuer;
(3) an executed supplemental indenture, if any;
(4) an Officers' Certificate setting forth the form and
terms of the Securities as required pursuant to Sections 2.1 and
2.3, respectively, and prepared in accordance with Section 11.5;
(5) an Opinion of Counsel, prepared in accordance with
Section 11.5, which shall state
(a) that the form or forms and terms of such
Securities have been established by or pursuant to a
resolution of the Board of Directors or by a supplemental
indenture as permitted by Sections 2.1 and 2.3 in
conformity with the provisions of this Indenture;
(b) that such Securities, when authenticated and
delivered by the Trustee and issued by the Issuer in the
manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and binding
obligations of the Issuer;
(c) that all laws and requirements in respect of the
execution and delivery by the Issuer of the Securities have
been complied with;
(d) that the Indenture and any supplemental indenture
has been duly authorized, executed and delivered by and
constitutes the valid and binding obligation of, the
Issuer; and
(e) such other matters as the Trustee may reasonably
request.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised
by counsel, determines that such action may not lawfully be taken by
the Issuer or if the Trustee in good faith by its board of directors or
board of trustees, executive committee, or a trust committee of
directors or trustees or Responsible Officers shall determine that such
action would expose the Trustee to personal liability to existing
Holders.
SECTION 2.5 Execution of Securities. The Securities shall be
signed on behalf of the Issuer by both (a) the chairman of its Board of
Directors or any vice chairman of its Board of Directors or its
president or any vice president and (b) by its treasurer or any
assistant treasurer or its secretary or any assistant secretary, under
its corporate seal which may, but need not, be attested. Such
signatures may be the manual or facsimile signatures of the present or
any future such officers. The seal of the Issuer may be in the form of
a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. Typographical and other minor
errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any
Security that has been duly authenticated and delivered by the
Trustee. Any Coupons attached to any Unregistered Security shall be
executed on behalf of the Issuer by the manual or facsimile signature
of any such officer of the Issuer.
In case any officer of the Issuer who shall have signed any of
the Securities or Coupons shall cease to be such officer before the
Security or Coupon so signed shall be authenticated and delivered by
the Trustee or disposed of by the Issuer, such Security or Coupon
nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security or Coupon had not ceased to
be such officer of the Issuer; and any Security or Coupon may be signed
on behalf of the Issuer by such persons as, at the actual date of the
execution of such Security or Coupon, shall be the proper officers of
the Issuer, although at the date of the execution and delivery of this
Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities
and Coupons appertaining thereto as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, executed
by the Trustee by the manual signature of one of its authorized
officers, shall be entitled to the benefits of this Indenture or be
valid or obligatory for any purpose. Such certificate by the Trustee
upon any Security executed by the Issuer shall be conclusive evidence
that the Security so authenticated has been duly authenticated and
delivered hereunder and that the Holder is entitled to the benefits of
this Indenture.
The Trustee shall not authenticate or deliver any Unregistered
Security until any matured Coupons appertaining thereto have been
detached and canceled, except as otherwise provided or permitted by
this Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities shall be issuable in denominations as shall be
specified as contemplated by Section 2.3. In the absence of any such
specification with respect to the Securities of any series, the
Securities of such series shall be issuable in denominations of $1,000
and any multiple thereof, which may be in Dollars, any Foreign Currency
or ECU, and interest shall be computed on the basis of a 360-day year
of twelve 30-day months. The Securities shall be numbered, lettered, or
otherwise distinguished in such manner or in accordance with such plan
as the officers of the Issuer executing the same may determine with the
approval of the Trustee as evidenced by the execution and
authentication thereof.
Each Security shall be dated the date of its authentication,
shall bear interest from the date and shall be payable on the dates, in
each case, which shall be specified as contemplated by Section 2.3.
Interest on any Security which is payable, and is punctually paid
or duly provided for, on any interest payment date shall be paid, in
the case of Registered Securities, to the person in whose name that
Security (or one or more predecessor Securities) is registered at the
close of business on the regular record date for the payment of such
interest and, in the case of Unregistered Securities, upon surrender of
the Coupon appertaining thereto in respect of the interest due on such
interest payment date.
The term "record date" as used with respect to any interest
payment date (except a date for payment of defaulted interest) shall
mean the date specified as such in the terms of the Securities of any
particular series, or, if no such date is so specified, if such
interest payment date is the first day of a calendar month, the
fifteenth day of the next preceding calendar month or, if such interest
payment date is the fifteenth day of a calendar month, the first day of
such calendar month, whether or not such record date is a Business Day.
Any interest on any Security of any series which is payable, but
is not punctually paid or duly provided for, on any interest payment
date (called "defaulted interest" for the purpose of the Section) shall
forthwith cease to be payable to the Registered Holder on the relevant
regular record date by virtue of his having been such Holder; and such
defaulted interest may be paid by the Issuer, at its election, as
provided in clause (1) or clause (2) below:
(1) The Issuer may elect to make payment of any defaulted
interest to the persons in whose names any such Registered
Securities (or their respective predecessor Securities) are
registered at the close of business on a special record date for
the payment of such defaulted interest, which shall be fixed in
the following manner. The Issuer shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid
on each Security of such series and the date of the proposed
payment, and at the same time the Issuer shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such defaulted interest or shall make
arrangements satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the persons entitled to such
defaulted interest as in this clause provided. Thereupon the
Trustee shall fix a special record date for the payment of such
defaulted interest in respect of Registered Securities of such
series which shall be not more than 15 nor less than 10 days
prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Issuer of
such special record date and, in the name and at the expense of
the Issuer, shall cause notice of the proposed payment of such
defaulted interest and the special record date thereof to be
mailed, first class postage prepaid, to each Registered Holder at
his address as it appears in the Security register, not less than
10 days prior to such special record date. Notice of the proposed
payment of such defaulted interest and the special record date
therefor having been mailed as aforesaid, such defaulted interest
in respect of Registered Securities of such series shall be paid
to the person in whose names such Securities (or their respective
predecessor Securities) are registered on such special record
date and such defaulted interest shall no longer be payable
pursuant to the following clause (2).
(2) The Issuer may make payment of any defaulted interest
on the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Securities of that series may be listed, and upon such
notice as may be required by such exchange, if, after notice
given by the Issuer to the Trustee of the proposed payment
pursuant to this clause, such payment shall be deemed practicable
by the Trustee.
Any defaulted interest payable in respect of any Security of any
series which is an Unregistered Security shall be payable pursuant to
such procedures as may be satisfactory to the Trustee in such manner
that there is no discrimination as between the Holders of Registered
Securities and other Securities of the same series, and notice of the
payment date therefor shall be given by the Trustee, in the name and at
the expense of the Issuer, by publication at least once in a newspaper
of general circulation in New York, New York.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer will
keep at each office or agency to be maintained for the purpose as
provided in Section 3.2 a register or registers in which, subject to
such reasonable regulations as it may prescribe, it will register, and
will register the transfer of, Registered Securities as in this Article
provided. Such register shall be in written form in the English
language or in any other form capable of being converted into such form
within a reasonable time. At all reasonable times such register or
registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any
Registered Security of any series at any such office or agency to be
maintained for the purpose as provided in Section 3.2, the Issuer shall
execute and the Trustee shall authenticate and deliver in the name of
the transferee or transferees a new Registered Security or Registered
Securities of the same series in authorized denominations for a like
aggregate principal amount.
Subject to Section 2.14, at the option of the Holder thereof,
Securities of a series, whether Registered Securities or Unregistered
Securities, which by their terms are registerable as to principal only
or as to principal and interest, may, to the extent and under the
circumstances specified pursuant to Section 2.3, be exchanged for
Registered Coupon Securities or Fully Registered Securities of such
series, as may be issued by the terms thereof. At the option of the
Holder thereof, Securities of a series, whether Registered Securities
or Unregistered Securities, which by their terms provide for the
issuance of Unregistered Securities, may, to the extent and under the
circumstances specified pursuant to Section 2.3, be exchanged for
Unregistered Securities of such series. Securities so issued in
exchange for other Securities shall be of any authorized denomination
and of like principal amount and stated maturity, and shall be issued
upon surrender of the Securities for which they are to be exchanged
and, in the case of Coupon Securities, together with all unmatured
Coupons and matured Coupons in default appertaining thereto, at the
office of Issuer provided for in Section 2.3 and upon payment, if the
Issuer shall require, of charges provided therein. Unregistered
Securities of any series issued in exchange for Registered Securities
of such series between the regular record date for such Registered
Security and the next interest payment date will be issued without the
Coupon relating to such interest payment date, and Unregistered
Securities surrendered in exchange for Registered Securities between
such dates shall be surrendered without the Coupon relating to such
interest payment date. Whenever any Securities are so surrendered for
exchange, the Issuer shall execute, and the Trustee shall authenticate
and deliver, the Securities which the Holder making the exchange is
entitled to receive. Notwithstanding the foregoing, an Unregistered
Security will not be delivered in exchange for a Registered Security or
Securities unless the Trustee receives a certificate signed by the
person entitled to delivery of such Security or other items or
documents fulfilling such conditions as shall be required by
regulations of the United States Department of the Treasury, or shall
be notified by the Issuer that such a certificate shall not be required
by such regulations; provided, however, that no such Unregistered
Security shall be delivered by the Trustee if the Trustee or such agent
shall have, or shall have been notified in writing by the Issuer that
the Issuer has, actual knowledge that such certificate is false.
Upon presentation for registration of any Unregistered Securities
of any series which by its terms is registerable as to principal, at
the office or agency of the Issuer to be maintained as provided in
Section 3.2, such Security shall be registered as to principal in the
name of the Holder thereof and such registration shall be noted on such
Security. Any Security so registered shall be transferable on the
registry books of the Issuer upon presentation of such Security at such
office or agency for similar notation thereon, but such Security may be
discharged from registration by being in a like manner transferred to
bearer, whereupon transferability by delivery shall be restored.
Unregistered Securities shall continue to be subject to successive
registrations and discharges from registration at the option of the
Holders thereof.
Unregistered Securities shall be transferable by delivery, except
while registered as to principal. Registration of any Coupon Security
shall not effect the transferability by delivery of the Coupons
appertaining thereto which shall continue to be payable to bearer and
transferable by delivery.
All Securities and Coupons issued upon any transfer or exchange
of Securities shall be the valid obligations of the Issuer, evidencing
the same debt, and entitled to the same benefits under this Indenture,
as the Securities and Coupons surrendered upon such transfer or
exchange.
Every Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Issuer or the
Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Security registrar
duly executed, by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Securities,
other than exchanges pursuant to Sections 2.11, 8.5 or 12.3 not
involving any transfer.
The Issuer shall not be required (i) to issue, register the
transfer of or exchange any Security during a period beginning at the
opening of business 15 days before the day of the selection of
Securities for redemption under Article Twelve or (ii) to register the
transfer of or exchange any Security so selected for redemption in
whole or in part.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
All Securities issued upon any transfer or exchange of Securities
shall have endorsed thereon, if applicable to Securities of such
series, a Guarantee or Guarantees executed by the Guarantors.
None of the Issuer, the Trustee or any Paying Agent will have any
responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of a
Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security or Coupon
shall become mutilated, defaced or be destroyed, lost or stolen, the
Issuer in its discretion may execute, and upon the written request of
any officer of the Issuer, the Trustee shall authenticate and deliver,
a new Security of the same series or Coupon, bearing a number not
contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security or Coupon, or in lieu of and substitution
for the Security or Coupon so destroyed, lost or stolen. In every case
the applicant for a substitute Security or Coupon shall furnish to the
Issuer and to the Trustee and to any agent of the Issuer or the Trustee
such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of
destruction, loss or theft, evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the
ownership thereof.
Upon the issuance of any substitute Security or Coupon, the
Issuer may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee)
connected therewith. In case any Security or Coupon which has matured
or is about to mature or has been called for redemption in full shall
become mutilated or defaced or be destroyed, lost or stolen, the Issuer
may, instead of issuing a substitute Security or Coupon, pay or
authorize the payment of the same (without surrender thereof except in
the case of a mutilated or defaced Security or Coupon), if the
applicant for such payment shall furnish to the Issuer and to the
Trustee and any agent of the Issuer or the Trustee such security or
indemnity as any of them may require to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall
also furnish to the Issuer and the Trustee and any agent of the Issuer
or the Trustee evidence to their satisfaction of the destruction, loss
or theft of such Security or Coupon and of the ownership thereof.
Every substitute Security of any series or Coupon issued pursuant
to the provisions of this Section by virtue of the fact that any such
Security or Coupon is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Issuer, whether or not the
destroyed, lost or stolen Security or Coupon shall be at any time
enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities
of such series or Coupons duly authenticated and delivered hereunder.
All Securities or Coupons shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities or Coupons and
shall preclude any and all other rights or remedies notwithstanding any
law or statute existing or hereafter enacted to the contrary with
respect to the replacement or payment of negotiable instruments or
other securities without their surrender.
Every substitute Security of any series issued pursuant to the
provisions of this Section shall have endorsed thereon, if applicable
to Securities of such series, a Guarantee or Guarantees executed by the
Guarantors.
SECTION 2.10 Cancellation of Securities; Destruction Thereof.
All Securities surrendered for payment, redemption, registration of
transfer or exchange, or for any future credit against any payment in
respect of a sinking or analogous fund which have been otherwise
acquired by Issuer and all Coupons surrendered for payment or exchange,
shall, if surrendered to the Issuer or any agent of the Issuer or the
Trustee, be delivered to the Trustee for cancellation or, if
surrendered to the Trustee, shall be canceled by it; and no Securities
or Coupons shall be issued in lieu thereof, except as expressly
permitted by any of the provisions of this Indenture. The Trustee shall
destroy canceled Securities and Coupons held by it and deliver a
certificate of destruction to the Issuer. If the Issuer shall acquire
any of the Securities and Coupons, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented by such
Securities and Coupons unless and until the same are delivered to the
Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the
Trustee shall authenticate and deliver temporary Securities for such
series (printed, lithographed, typewritten or otherwise reproduced, in
each case in form satisfactory to the Trustee). Temporary Securities of
any series may be issued as Registered Securities or Unregistered
Securities with or without Coupons attached thereto, of any authorized
denomination, and substantially in the form of the definitive
Securities of such series but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may
be determined by the Issuer with the concurrence of the Trustee.
Temporary Securities may contain such reference to any provisions of
this Indenture as may be appropriate. Every temporary Security shall be
executed by the Issuer and be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and with like
effect, as the definitive Securities. Without unreasonable delay the
Issuer shall execute and shall furnish definitive Securities of such
series and thereupon temporary Securities of such series may be
surrendered in exchange therefor without charge at each office or
agency to be maintained by the Issuer for that purpose pursuant to
Section 3.2, and the Trustee shall authenticate and deliver in exchange
for such temporary Securities of such series a like aggregate principal
amount of definitive Securities of the same series of authorized
denominations and, in the case of Unregistered Securities, having
attached thereto any appropriate Coupons. Until so exchanged, the
temporary Securities of any series shall be entitled to the same
benefits under this Indenture as definitive Securities of such series.
All temporary Security of any series issued pursuant to the
provisions of this Section shall have endorsed thereon, if applicable
to Securities of such series, a Guarantee or Guarantees executed by the
Guarantors.
SECTION 2.12 Currency and Manner of Payments in Respect of
Securities.
(a) With respect to Registered Securities denominated in Dollars
or Foreign Currency and with respect to Registered Securities
denominated in ECU with respect to which the Holders of such Securities
have not made the election provided for in paragraph (b) below, the
following payment provisions shall apply:
(1) Except as provided in subparagraph (a) (2) or in
paragraph (e) below, payment of the principal of any Registered
Security will be made at the Place of Payment by delivery of a
check in the currency in which the Security is denominated on the
payment date against surrender of such Registered Security, and
any interest on any Registered Security will be paid at the Place
of Payment by mailing a check in the currency in which the
Securities were issued to the Person entitled thereto at the
address of such Person appearing on the Security register.
(2) Payment of the principal of and interest on such
Security may also, subject to applicable laws and regulations, be
made at such other place or places as may be designated by the
Issuer by any appropriate method.
(b) With respect to Registered Securities denominated in ECU, the
following payment provisions shall apply, except as otherwise provided
in paragraphs (e) and (f) below:
(1) The Board of Directors of the Issuer may provide with
respect to any series of such Securities that Holders shall have
the option to receive payments of principal of and interest on
such Security in any of the currencies which may be designated
for such election in such Security by delivering to the Trustee a
written election, to be in form and substance satisfactory to the
Trustee, not later than the close of business on the record date
immediately preceding the applicable payment date. Such election
will remain in effect for such Holder until changed by the Holder
by written notice to the Trustee (but any such change must be
made not later than the close of business on the record date
immediately preceding the next payment date to be effective for
the payment to be made on such payment date and no such change
may be made with respect to payments to be made on any Security
with respect to which notice of redemption has been given by the
Issuer pursuant to Article Twelve). Any Holder of any such
Security who shall not have delivered any such election to the
Trustee not later than the close of business on the applicable
record date will be paid the amount due on the applicable payment
date in ECU as provided in paragraph (a) of this Section 2.12.
Payment of principal shall be made on the payment date against
surrender of such Securities. Payment of principal and interest
shall be made at the Place of Payment by mailing at such location
a check in the applicable currency to the Person entitled thereto
at the address of such Person appearing on the Security register.
(2) Payment of the principal of and interest on such
Security may also, subject to applicable laws and regulations, be
made at such other place or places as may be designated by the
Issuer by any appropriate method.
(c) Payment of the principal of and interest on any Unregistered
Security will be made at such place or places outside the United States
as may be designated by the Issuer by any appropriate method only in
the currency in which the Security is denominated (except as provided
in paragraph ( e) below) on the payment date against surrender of the
Unregistered Security, in the case of payment of principal, or the
relevant Coupon, in the case of payment of interest. Except as provided
in paragraph (e) below, payment with respect to Unregistered Securities
and Coupons will be made by check, subject to any limitations on the
methods of effecting such payment as shall be specified in the terms of
the Security established as provided in Section 2.3 and as shall be
required under applicable laws and regulations. Payment of the
principal of and interest on Unregistered Securities may also, subject
to applicable laws and regulations, be made at such other place or
places as may be designated by the Issuer by any appropriate method.
(d) Not later than the fourth Business Day after the record date
for each payment date, the Trustee will deliver to the Issuer a written
notice specifying, in the currency in which each series of the
Securities are denominated, the respective aggregate amounts of
principal of and interest on the Securities to be made on such payment
date, specifying the amounts so payable in respect of the Registered
and the Unregistered Securities and in respect of the Registered
Securities as to which the Holders of Securities denominated in ECU
shall have elected to be paid in another currency as provided in
paragraph (b) above. If the Board of Directors has provided for the
election referred to in paragraph (b) above and if at least one Holder
has made such election, then not later than the eighth Business Day
following each record date the Company will deliver to the Trustee an
Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency payments to be made on such payment date. The Dollar or
Foreign Currency amount receivable by Holders of Registered Securities
denominated in ECU who have elected payment in such currency as
provided in paragraph (b) above shall be determined by the Issuer on
the basis of the applicable Official ECU Exchange Rate set forth in the
applicable Exchange Rate Officer's Certificate.
(e) If the Foreign Currency in which any of the Securities are
denominated ceases to be used both by the government of the country
which issued such currency and for the settlement of transactions by
public institutions of or within the international banking community,
or if the ECU ceases to be used both within the European Monetary
System and for the settlement of transactions by public institutions of
or within the European Communities, then with respect to each date for
the payment of principal of, premium, if any, and interest on the
applicable Foreign Currency or ECU denominated Securities occurring
after the last date on which the Foreign Currency or ECU was so used
(the "Conversion Date"), the Dollar shall be the currency of payment
for use on each such payment date. The Dollar amount to be paid by the
Issuer to the Trustee and by the Trustee or any Paying Agent to the
Holders of such Securities with respect to such payment date shall be
the Dollar Equivalent of the Foreign Currency or, in the case of ECU,
the Dollar Equivalent of the ECU as determined by the Trustee as of the
record date (the "Valuation Date") in the manner provided in paragraphs
(g) or (h) below.
(f) If the Holder of a Registered Security denominated in ECU
elects payment in a specified Foreign Currency as provided for by
paragraph (b) and such Foreign Currency ceases to be used both by the
government of the country which issued such currency and for the
settlement of transactions by public institutions of or within the
international banking community, such Holder shall receive payment in
ECU, and if ECU ceases to be used both within the European Monetary
System and for the settlement of transactions by public institutions of
or within the European Communities, such Holder shall receive payment
in Dollars.
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Trustee as of each Valuation Date and shall be
obtained by converting the specified Foreign Currency into Dollars at
the Market Exchange Rate on the Valuation Date.
(h) The "Dollar Equivalent of the ECU" shall be determined by the
Trustee as of each Valuation Date and shall be the sum obtained by
adding together the results obtained by converting the Specified Amount
of each Component Currency into Dollars at the Market Exchange Rate on
the Valuation Date for such Component Currency.
(i) For purposes of this Section 2.12 the following terms shall
have the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units or fractions thereof which such Component Currency
represented in the ECU on the Conversion Date. If after the Conversion
Date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component
Currency shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are
consolidated into a single currency, the respective Specified Amounts
of such Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the respective Specified Amounts of
such consolidated Component Currencies expressed in such single
currency, and such amount shall thereafter be a Specified Amount and
such single currency shall thereafter be a Component Currency. If after
the Conversion Date any Component Currency shall be divided into two or
more currencies, the Specified Amount of such Component Currency shall
be replaced by specified amounts of such two or more currencies, the
sum of which, at the Market Exchange Rate of such two or more
currencies on the date of such replacement, shall be equal to the
Specified Amount of such former Component Currency divided by the
number of currencies into which such Component Currency was divided,
and such amounts shall thereafter be Specified Amounts and such
currencies shall thereafter be Component Currencies.
"Market Exchange Rate" shall mean for any currency the noon
Dollar buying rate for that currency for cable transfers quoted in New
York City on the Valuation Date as certified for customs purposes by
the Federal Reserve Bank of New York. If such rates are not available
for any reason with respect to one or more currencies for which an
Exchange Rate is required, the Trustee shall use, in its sole
discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York as of the most recent available date,
or quotations from one or more major banks in New York City or in the
country of issue of the currency in question, or such other quotations
as the Trustee shall deem appropriate. Unless otherwise specified by
the Trustee, if there is more than one market for dealing in any
currency by reason of foreign exchange regulations or otherwise, the
market to be used in respect of such currency shall be that upon which
a nonresident issuer of securities designated in such currency would
purchase such currency in order to make payments in respect of such
securities.
All decisions and determinations of the Trustee regarding the
Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
ECU and the Market Exchange Rate shall be in its sole discretion and
shall, in the absence of manifest error, be conclusive for all purposes
and irrevocably binding upon the Issuer and all Holders of the
Securities. In the event that the Foreign Currency ceases to be used
both by the government of the country which issued such currency and
for the settlement of transactions by public institutions of or within
the international banking community, the Issuer, after learning
thereof, will immediately give notice thereof to the Trustee (and the
Trustee will promptly thereafter give notice in the manner provided in
Section 11.4 to the Holders) specifying the Conversion Date. In the
event the ECU ceases to be used both within the European Monetary
System and for the settlement of transactions by public institutions of
or within the European Communities, the Issuer, after learning thereof,
will immediately give notice thereof to the Trustee (and the Trustee
will promptly thereafter give notice in the manner provided in Section
11.4 to the Holders) specifying the Conversion Date and the Specified
Amount of each Component Currency on the Conversion Date. In the event
of any subsequent change in any Component Currency as set forth in the
definition of Specified Amount above, the Issuer, after learning
thereof, will similarly give notice to the Trustee. The Trustee shall
be fully justified and protected in relying on and acting upon the
information so received by it from the Issuer and shall not otherwise
have any duty or obligation to determine such information independently.
SECTION 2.13 Compliance with Certain Laws and Regulations.
If any Unregistered Securities are to be issued in any series of
Securities, the Issuer, Trustee, or any Paying Agent will use
reasonable efforts to provide for arrangements and procedures designed
pursuant to then applicable laws and regulations, if any, to ensure
that Unregistered Securities are sold or resold, exchanged, transferred
and paid only in compliance with such laws and regulations and without
adverse consequences to the Issuer.
SECTION 2.14. Securities Issuable in the Form of a Global
Security.
(a) If the Issuer shall establish pursuant to Section 2.3 that
the Securities of a particular series are to be issued in whole or in
part in the form of one or more Global Securities, then the Issuer
shall execute and the Trustee shall, in accordance with Section 2.4 and
the Issuer order delivered to the Trustee thereunder, authenticate and
deliver, such Global Security or Securities, which (i) shall represent,
and shall be denominated in an amount equal to the aggregate principal
amount of, the Outstanding Securities of such series to be represented
by such Global Security or Securities, (ii) shall be registered in the
name of the Depositary for such Global Security or Securities or its
nominee, (iii) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is
exchanged in whole or in part for the individual Securities represented
hereby, this Global 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."
(b) Notwithstanding any other provision of this Section 2.14 or
of Section 2.8, unless the terms of a Global Security expressly permit
such Global Security to be exchanged in whole or in part for individual
Securities, a Global Security may be transferred, in whole but not in
part and in the manner provided in Section 2.8, only to another nominee
of the Depositary for such Global Security, or to a successor
Depositary for such Global Security selected or approved by the Issuer
or to a nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security
notifies the Issuer that it is unwilling or unable to continue as
Depositary for such Global Security or if at any time the Depositary
for the Securities for such series shall no longer by eligible or in
good standing under the Securities Exchange Act of 1934, as amended, or
other applicable statute or regulation, the Issuer shall appoint a
successor Depositary with respect to such Global Security. If a
successor Depositary for such Global Security is not appointed by the
Issuer within 90 days after the Issuer receives such notice or becomes
aware of such ineligibility, the Issuer's election pursuant to Section
2.3(10) shall no longer be effective with respect to such Global
Security and the Issuer will execute, and the Trustee, upon receipt of
an Issuer order for the authentication and delivery of individual
Securities of such series in exchange for such Global Security, will
authenticate and deliver individual Securities of such series of like
tenor and terms in definitive form in an aggregate principal amount
equal to the principal amount of the Global Security in exchange for
such Global Security.
(ii) The Issuer may at any time and in its sole discretion
determine that the Securities of any series issued or issuable in
the form of one or more Global Securities shall no longer be
represented by such Global Security or Securities. In such event
the Issuer will execute, and the Trustee, upon receipt of a
Issuer order for the authentication and delivery of individual
Securities of such series in exchange in whole or in part for
such Global Security, will authenticate and deliver individual
Securities of such series of like tenor and terms in definitive
form in an aggregate principal amount equal to the principal
amount of such Global Security or Securities representing such
series in exchange for such Global Security or Securities.
(iii) If specified by the Issuer pursuant to Section 2.3
with respect to Securities issued or issuable in the form of a
Global Security, the Depositary for such Global Security may
surrender such Global Security in exchange in whole or in part
for individual Securities of such series of like tenor and terms
in definitive form on such terms as are acceptable to the Issuer
and such Depositary. Thereupon the Issuer shall execute, and the
Trustee shall authenticate and deliver, without service charge,
(1) to each Person specified by such Depositary a new Security or
Securities of the same series of like tenor and terms and of any
authorized denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and (2) to such
Depositary a new Global Security of like tenor and terms and in a
denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to Holders
thereof.
(iv) if there shall have occurred and be continuing an
Event of Default or an event which with the giving of notice or
lapse of time or both, would constitute an Event of Default with
respect to Securities represented by such Global Security or
Securities, thereupon the Issuer shall execute, and the Trustee
shall authenticate and deliver, without service charge, to each
Person specified by the Depositary a new Security or Securities
of the same series of like tenor and terms and of any authorized
denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's beneficial
interest in the Global Security.
(v) In any exchange provided for in any of the preceding
four paragraphs, the Issuer will execute and the Trustee will
authenticate and deliver individual Securities in definitive
registered form in authorized denominations. Upon the exchange
of a Global Security for individual Securities, such Global
Security shall be canceled by the Trustee. Securities issued in
exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as
the Depositary for such Global Security, pursuant to instructions
from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities
to the persons in whose names such Securities are so registered.
SECTION 2.15 Appointment of Agents With Respect to Certain
Calculations. The Issuer may appoint an Agent or Agents with respect
to one or more Series of Securities which Agent or Agents shall be
authorized to determine the rate or rates of interest applicable to the
Securities of any Series from time to time in effect, the amount of
principal or premium, if any, payable on the Securities of any Series
and the rates of exchange applicable to the Securities of any Series
denominated in a currency other than United States dollars from time to
time in effect, all in accordance with the terms of the Securities of
such Series. Wherever reference is made in this Indenture to any such
calculation by the Trustee, it shall be deemed to refer to the
calculation by such agent or agents. Such agent, upon calculating the
amounts so to be calculated pursuant to the terms of the Securities of
any Series shall communicate promptly in writing the amounts so
calculated to the Issuer and the Trustee. Absent manifest error, all
amounts so calculated shall be binding on the Issuer, the Trustee and
the Holders of the Securities of such Series.
Any such agent may resign at any time by giving written notice
thereof to the Issuer and to the Trustee. The Issuer may at any time
terminate the agency of any such agent by giving written notice thereof
to such agent and to the Trustee. Upon receiving such a notice of
resignation or upon such a termination, the Issuer may appoint a
successor agent and shall give notice of such appointment to all
Holders of Securities in the manner provided in Section 11.4.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer
covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay or cause to be paid the principal of,
premium, if any, and interest on, each of the Securities of such series
in accordance with the terms of the Securities of such series, any
Coupons appertaining thereto and this Indenture.
The interest on Unregistered 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 Security shall be
paid, as to any installment of interest evidenced by a Coupon attached
thereto, if any, only upon presentation and surrender of such Coupon,
and, as to the other installments of interest, if any, only upon
presentation of such Securities for notation thereon of the payment of
such interest.
SECTION 3.2 Offices for Payments, etc. So long as any of the
Securities remain outstanding, the Issuer will maintain the following
for each series: an office or agency (a) where the Securities may be
presented for payment, (b) where the Securities may be presented for
registration of transfer and for exchange as in this Indenture provided
and (c) where notices and demands to or upon the Issuer in respect of
the Securities or of this Indenture may be served. The Issuer will give
to the Trustee written notice of the location of any such office or
agency and of any change of location thereof. In case the Issuer shall
fail to so designate or maintain any such office or agency or shall
fail to give such notice of the location or of any change in the
location thereof, presentations and demands may be made and notices may
be served at the Corporate Trust Office.
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee.
The Issuer, whenever necessary to avoid or fill a vacancy in the office
of Trustee, will appoint, in the manner provided in Section 6.11, a
Trustee, so that there shall at all times be a Trustee with respect to
each series of Securities hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer shall appoint a
Paying Agent other than the Trustee with respect to the Securities of
any series, it will cause such Paying Agent to execute and deliver to
the Trustee an instrument in which such Agent shall agree with the
Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as such Agent
for the payment of the principal of or interest on the Securities
of such series or Coupons (whether such sums have been paid to it
by the Issuer or by any other obligor on the Securities of such
series or Coupons) in trust for the benefit of the Holders of the
Securities of such series or of the Trustee, and upon the
occurrence of an Event of Default pay over all such sums received
by it to the Trustee,
(b) that it will give the Trustee notice of any failure by
the Issuer (or by any other obligor on the Securities of such
series) to make any payment of the principal of or interest on
the Securities of such series or Coupons when the same shall be
due and payable,
(c) pay any such sums so held in trust by it to the Trustee
upon the Trustee's written request at any time during the
continuance of the failure referred to in clause (b) above, and
(d) that it will give the Trustee notice of any change of
address of any Holder of which it is aware.
The Issuer will, on or prior to each due date of the principal of
or interest on the Securities of such series or Coupons, deposit with
the Paying Agent a sum sufficient to pay such principal or interest so
becoming due, and (unless such Paying Agent is the Trustee) the Issuer
will promptly notify the Trustee of any failure to take such action.
If the Issuer shall act as its own Paying Agent with respect to
the Securities of any series or Coupons, it will, on or before each due
date of the principal of or interest on the Securities of such series
or Coupons, set aside, segregate and hold in trust for the benefit of
the Holders of the Securities of such series or Holders of such Coupons
a sum sufficient to pay such principal or interest so becoming due. The
Issuer will promptly notify the Trustee of any failure to take such
action.
Anything in this Section to the contrary notwithstanding, the
Issuer may at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Securities or
Coupons hereunder, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust for any such series by the Issuer or
any Paying Agent hereunder, as required by this Section, such sums to
be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject
to the provisions of Sections 10.3 and 10.4.
SECTION 3.5 Written Statement to Trustee. The Issuer will deliver
to the Trustee on or before January 1 in each year (beginning with
1995) brief certificates (which need not comply with Section 11.5) from
the principal executive, financial or accounting officer of the Issuer
as to his or her knowledge of the Issuer's compliance with all
conditions and covenants under the Indenture (such compliance to be
determined without regard to any period of grace or requirement of
notice provided under the Indenture).
SECTION 3.6 Limitation on Liens. (a) So long as any of the
Securities remain Outstanding and unpaid, the Issuer will not create,
assume or suffer to exist and will not cause, suffer to exist or permit
any Restricted Subsidiary to create, assume or suffer to exist, any
mortgage, pledge, security interest or other lien or encumbrance
(herein referred to as a "Mortgage") of or upon any of its or their
properties or assets, real or personal, whether owned at the date of
this Indenture or thereafter acquired, or of or upon any income or
profits therefrom, without making effective provision, and the Issuer
covenants that in any such case it will make or cause to be made
effective provision, whereby the Securities then Outstanding shall be
secured by such mortgage, pledge, lien or encumbrance equally and
ratably with any and all other obligations and indebtedness thereby
secured so long as such indebtedness is so secured; provided, that the
foregoing covenant shall not apply to any mortgage of the following
character (each, a "Permitted Lien"):
(i) Mortgages on property existing at the time of
acquisition of such property (provided such mortgages are limited
to such property and improvements thereon) or to secure the
payment of all or any part of the purchase price thereof or to
secure any indebtedness incurred at the time of, or within 180
days after, the acquisition of such property for the purpose of
financing all or any part of the purchase price thereof;
(ii) Mortgages on property of any Person, which Mortgages
are existing at the time (A) such person became a Restricted
Subsidiary, (B) such person is merged into or consolidated with
the Issuer or any Subsidiary or (C) another Subsidiary merges
into or consolidates with such person (in a transaction in which
such person becomes a Restricted Subsidiary), which Mortgage was
not incurred in anticipation of such transaction and was
outstanding prior to such transaction;
(iii) Mortgages existing on the date of this Indenture;
(iv) Mortgages which secure debt owing to the Issuer or a
Restricted Subsidiary by a Restricted Subsidiary;
(v) Mortgages on any property created, assumed or otherwise
brought into existence in contemplation of the sale or other
disposition of such property, whether directly or indirectly by
way of share disposition or otherwise; provided that after 120
days from the creation of such mortgage such property shall not
be owned by the Issuer or any Restricted Subsidiary and any
indebtedness secured by such mortgage shall be without recourse
to the Issuer or any Restricted Subsidiary;
(vi) Mortgages arising by reason of any judgment, decree or
order of any court, so long as any appropriate legal proceedings
which may have been duly initiated for the review of such
judgment, decree or order shall not have been finally terminated
or so long as the period within which such proceedings may be
initiated shall not have expired; or pledges or deposits to
secure payment of workmen's compensation or other insurance, good
faith deposits in connection with tenders, contracts (other than
contracts for the payment of money) or leases, deposits to secure
public or statutory obligations, deposits to secure or in lieu of
surety or appeal bonds, or deposits as security for the payment
of taxes;
(vii) Mortgages in favor of any governmental body to secure
progress, advance or other payments pursuant to any contract or
provision of any statute; and
(viii) extensions, renewals or replacements, in whole or in
part, of any Mortgage referred to in the foregoing clauses (i) to
(vii), inclusive, provided that the principal amount of
indebtedness secured thereby shall not exceed the principal
amount of indebtedness so secured at the time of such extension,
renewal or replacement, and that such extension, renewal or
replacement shall be limited to all or any part of the same
property that secured the Mortgage extended, renewed or replaced
(plus improvements on such property).
(b) Notwithstanding the provisions contained in subdivision (a)
of this Section 3.6, the Issuer and its Restricted Subsidiaries, or any
of them, may create Mortgages without equally and ratably securing the
Securities or create, incur, assume or permit to exist Indebtedness of
Restricted Subsidiaries otherwise prohibited, if, after giving effect
thereto and to the retirement of any indebtedness or obligations which
are concurrently being retired, the aggregate amount of all outstanding
indebtedness of the Issuer and its Restricted Subsidiaries secured by
Mortgages which could not exist without equally and ratably securing
the Securities except for the provisions of this subdivision (b) plus
the aggregate amount of Attributable Debt in respect of Sale and
Lease-Back Transactions (as defined in Section 3.7) existing at such
time which could not have been entered into by the Issuer or a
Restricted Subsidiary except for the provisions of clause (a) of
Section 3.7 plus the aggregate amount of Indebtedness of Restricted
Subsidiaries otherwise prohibited does not at such time exceed 10% of
the Consolidated Net Tangible Assets of the Issuer and its Restricted
Subsidiaries.
In the event that the Issuer shall hereafter secure the
Securities pursuant to the provisions of this Section 3.6, the Trustee
is hereby authorized to enter into an indenture supplemental hereto and
to take such action, if any, as it may deem advisable to enable it to
enforce effectively the rights of the holders of the Securities so
secured.
SECTION 3.7 Limitation on Sale and Lease-Back Transactions. The
Issuer will not enter into any arrangements with any person, nor will
the Issuer permit any Restricted Subsidiary to enter into any
arrangements with any person other than the Issuer, providing for the
leasing by the Issuer or any Restricted Subsidiary of all or any
substantial portion of any Principal Property (except for leases for
temporary periods not to exceed three years by the end of which it is
intended that the use of the leased property by the lessee will be
discontinued), which property has been or is to be sold or transferred
by the Issuer or such Restricted Subsidiary to such person with the
intention of taking back a lease of such Principal Property (herein
referred to as a "Sale and Lease-Back Transaction") unless the net
proceeds of the sale or transfer of the property to be leased are at
least equal to the fair value (as determined by the Board of Directors)
of such Principal Property and either
(a) the Issuer or such Restricted Subsidiary would, at the
time entering into such arrangement, be entitled, without equally
and ratably securing the Securities, to create or assume a
mortgage on such property securing indebtedness in an amount at
least equal to the Attributable Debt in respect of such Sale and
Lease-Back Transaction, pursuant to subdivision (b) of Section
3.6, or
(b) the Issuer, within 120 days after the transfer of title
to such Principal Property, shall apply an amount equal to the
net proceeds derived from such sale or transfer to the
retirement, repayment or other discharge of Securities in
accordance with the terms thereof or other indebtedness for
borrowed money of the Issuer which ranks pari passu with the
Securities and which by its terms matures at, or is extendible or
renewable at the option of the obligor to, a date more than 12
months after the date of the creation of such indebtedness.
A Sale and Lease-Back Transaction shall not be deemed to result
in the creation of a mortgage.
SECTION 3.8 Additional Amounts. If the Securities of a Series
provide for the payment of additional amounts, the Issuer will pay to
the Holder of any Security of such Series or any Coupon appertaining
thereto additional amounts as provided therein. Whenever in this
Indenture there is mentioned, in any context, the payment of the
principal of or interest on, or in respect of, any Security of any
Series or payment of any related Coupon or the net proceeds received on
the sale or exchange of any Security of any Series, such mention shall
be deemed to include mention of the payment of additional amounts
provided for in this Section to the extent that, in such context,
additional amounts are, were or would be payable in respect thereof
pursuant to the provisions of this Section and express mention of the
payment of additional amounts (if applicable) in any provisions hereof
shall not be construed as excluding additional amounts in those
provisions hereof where such express mention is not made.
If the Securities of a Series provide for the payment of
additional amounts, at least 10 days prior to the first interest
payment dated with respect to that Series of Securities (or if the
Securities of that Series will not bear interest prior to maturity, the
first day on which a payment of principal is made), and at least 10
days prior to each date of payment of principal or interest if there
has been any change with respect to the matters set forth in the
below-mentioned Officer's Certificate, the Issuer will furnish the
Trustee and the Issuer's principal Paying Agent or Paying Agents, if
other than the Trustee, with an Officer's Certificate instructing the
Trustee and such Paying Agent or Paying Agents whether such payment of
principal of or interest on the Securities of that Series shall be made
to Holders of Securities of that Series or any related Coupons who are
United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of
that Series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of Securities
of Coupons and the Issuer will pay to the Trustee or such Paying Agent
the additional amounts required by this Section. The Issuer covenants
to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising our of or in
connection with actions taken or omitted by any of them in reliance on
any Officers' Certificate furnished pursuant to this Section.
SECTION 3.9 Limitations on Restricted Subsidiary Indebtedness.
The Issuer will not permit any Restricted Subsidiary to incur or
assume any indebtedness except:
(1) Indebtedness outstanding on the date of this Indenture;
(2) Indebtedness that is or could be secured by a Mortgage
permitted pursuant to Section 3.6;
(3) Indebtedness issued to and held by the Issuer or
another Restricted Subsidiary;
(4) Indebtedness incurred by a Person prior to the time (A)
such Person became a Restricted Subsidiary, (B) such Person is
merged into or consolidated with the Company or any Subsidiary or
(C) another Subsidiary merges into or consolidates with such
Person (in a transaction in which such Person becomes a
Restricted Subsidiary), which Indebtedness was not incurred in
anticipation of such transaction and was outstanding prior to
such transaction;
(5) indebtedness incurred in the ordinary course of
business and maturing within one year; and
(6) extensions, renewals or replacements of any of the
foregoing;
Provided, however, that the Issuer may permit a Restricted Subsidiary
to incur Indebtedness otherwise prohibited by this Section 3.9 if such
Indebtedness may be incurred pursuant to subdivision (b) of Section 3.6.
SECTION 3.10. Corporate Existence.
Subject to Articles Nine and Thirteen hereof, the Issuer shall do
or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence and the corporate, partnership
or other existence of each Restricted Subsidiary in accordance with the
respective organizational documents of each Restricted Subsidiary and
the rights (charter and statutory), licenses and franchises of the
Issuer and its Restricted Subsidiaries, provided that the Issuer shall
not be required to preserve any such right, license or franchise, or
the corporate, partnership or other existence of any Restricted
Subsidiary, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of the Issuer and its Restricted Subsidiaries taken as a whole
and that the loss thereof is not adverse in any material respect to the
Holders.
SECTION 3.11. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 2.3 for
Securities of such series, the Issuer may, with respect to the
Securities of any series, omit in any particular instance to comply
with any term, provision or condition set forth in any covenant
provided pursuant to Section 2.3(12), 8.1(c) or 8.1(e) for the benefit
of the Holders of such series or in Section 3.6, 3.7, 3.9 or 3.10 if
before the time for such compliance the Holders of at least a majority
in aggregate principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in
such instance or generally waive compliance with such term, provision
or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Issuer
and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE FOUR
SECURITYHOLDERS' LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Securityholders Lists. If and so long as the Trustee
shall not be the Security registrar for the Registered Securities of
any series, the Issuer will furnish or cause to be furnished to the
Trustee a list in such form as the Trustee may reasonably require of
the names and addresses of the holders of the Registered Securities of
such series pursuant to Section 312 of the Trust Indenture Act (a)
semi-annually not more than 15 days after each record date for the
payment of interest on such Registered Securities, as hereinabove
specified, as of such record date and on dates to be determined
pursuant to Section 2.3 for non-interest bearing securities in each
year, and (b) at such other times as the Trustee may request in
writing, within thirty days after receipt by the Issuer of any such
request as of a date not more than 15 days prior to the time such
information is furnished.
SECTION 4.2 Reports by the Issuer. The Issuer covenants to file
with the Trustee, within 15 days after the issuer is required to file
the same with the Commission, copies of the annual reports and of the
information, documents, and other reports which the Issuer may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934.
SECTION 4.3 Reports by the Trustee. Any Trustee's report
required under Section 313(a) of the Trust Indenture Act shall be
transmitted on or before July 15 in each year following the date
hereof, so long as any Securities are outstanding hereunder, and shall
be dated as of a date convenient to the Trustee no more than 60 nor
less than 45 days prior thereto.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 5.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default. "Event of Default" with respect to Securities of any
series wherever used herein means each one of the following events
which shall have occurred and be continuing (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of any installment of interest
upon any of the Securities of such series as and when the same
shall become due and payable, and continuance of such default for
a period of 30 days; or
(b) default in the payment of all or any part of the
principal on any of the Securities of such series as and when the
same shall become due and payable either at maturity, upon
redemption, by declaration or otherwise; or
(c) default in the payment of any sinking fund installment
as and when the same shall become due and payable by the terms of
the Securities of such series; or
(d) default in the performance of any covenant or warranty
of the Issuer in respect of the Securities of such series (other
than a covenant or warranty in respect of the Securities of such
series a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to
the Issuer by the Trustee or to the Issuer and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities of such series affected thereby, a written notice
specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder;
or
(e) a court having jurisdiction in the premises shall enter
a decree or order for relief in respect of the Issuer in an
involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Issuer or for any
substantial part of its property or ordering the winding up or
liquidation of its affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(f) the Issuer shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to
the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Issuer or for any substantial part of
its property, or make any general assignment for the benefit of
creditors; or
(g) (i) default under any Indebtedness of the Issuer or any
Subsidiary or under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or
evidenced any Indebtedness of the Issuer or any Subsidiary
resulting in the acceleration of such Indebtedness, or (ii) any
default in payment of such Indebtedness (after expiration of any
applicable grace periods), if the aggregate amount of all such
Indebtedness that has been so accelerated and with respect to
which there has been a default in payment shall exceed the
greater of $20,000,000 or 3% of Consolidated Net Tangible Assets
and there shall have been a failure to obtain rescission or
annulment of all such accelerations or to discharge all such
defaulted Indebtedness within 10 days after written notice of the
type specified in the foregoing clause (d); or
(h) any other Event of Default provided in the supplemental
indenture or resolution of the Board of Directors under which
such series of Securities is issued or in the form of Security
for such series.
If an Event of Default occurs and is continuing, then, and in each and
every such case, unless the principal of all of the Securities of such
series shall have already become due and payable, either the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
Securities of such series then Outstanding hereunder (each such series
treated as a separate class), by notice in writing to the Issuer (and
to the Trustee if given by the Securityholders), may declare the entire
principal of all Securities of such series and the interest accrued
thereon 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 of the Securities of any
series shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Issuer shall pay or
shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of such series and the
principal of any and all Securities of such series 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 Securities, as the case may be) to the
date of such payment or deposit) and such amount as shall be sufficient
to cover reasonable compensation to the Trustee, its agents, attorneys
and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of negligence or bad
faith, and if any and all Events of Default under the Indenture, other
than the non- payment of the principal of Securities which shall have
become due by acceleration, shall have been cured, waived or otherwise
remedied as provided herein---then and in every such case the Holders
of a majority in aggregate principal amount of all the Securities of
such series, each series treated as a separate class, then outstanding,
by written notice to the Issuer and to the Trustee, may waive all
defaults with respect to such series 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.
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee May
Prove Debt. The Issuer covenants that (a) in case default shall be made
in the payment of any installment of interest on any of the Securities
of any series when such interest shall have become due and payable, and
such default shall have continued for a period of 30 days or (b) in
case default shall be made in the payment of all or any part of the
principal of any of the Securities of any series when the same shall
have become due and payable, whether upon maturity of the Securities of
such series or upon any redemption or by declaration or
otherwise---then upon demand of the Trustee, the Issuer will pay to the
Trustee for the benefit of the Holders of the Securities of such series
and the Holders of any Coupons appertaining thereto the whole amount
that then shall have become due and payable on all Securities of such
series or such Coupons for principal of or interest, as the case may be
(with interest to the date of such payment upon the overdue principal
and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest at the same rate as
the rate of interest specified in the Securities of such series); and
in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including reasonable
compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and any expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the
Registered Holders, whether or not the principal of and interest on the
Securities of such series are overdue.
In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due
and unpaid, and may prosecute any such action or proceedings to
judgment or final decree, and may enforce any such judgment or final
decree against the Issuer or other obligor upon such Securities and
collect in the manner provided by law out of the property of the Issuer
or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer
or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or
trustee in bankruptcy or reorganization, liquidator, sequestrator or
similar official shall have been appointed for or taken possession of
the Issuer or its property or such other obligor, or in case of any
other comparable judicial proceedings relative to the Issuer or other
obligor upon the Securities of any series, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective
of whether the principal of any Securities shall then be due and
payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant
to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole
amount of principal and interest owing and unpaid in respect of
the Securities of any series, and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and
their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee,
except as a result of negligence or bad faith) and of the
Securityholders and the Holders of any Coupons appertaining
thereto allowed in any judicial proceedings relative to the
Issuer or other obligor upon the Securities of any series, or to
the creditors or property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Securities of any series in
any election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the
Securityholders and of the Trustee on their behalf; and any
trustee, receiver, or liquidator, custodian or other similar
official is hereby authorized by each of the Holders to make
payments to the Trustee, and, in the event that the Trustee shall
consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except
as a result of negligence or bad faith and all other amounts due
to the Trustee or any predecessor Trustee pursuant to Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities of any series or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of
the claim of any Securityholder in any such proceeding except, as
aforesaid, to vote for the election of a trustee in bankruptcy or
similar person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities may be enforced by the
Trustee without the possession of any of the Securities or the
production thereof at any trial or other proceedings relative thereto,
and any such action or proceedings instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any
recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Trustee, each predecessor Trustee
and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Securities and Holders of any Coupons in
respect of which such action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this
Indenture to which the Trustee shall be a party), the Trustee shall be
held to represent all the Holders of the Securities and Coupons
appertaining thereto in respect to which such action was taken, and it
shall not be necessary to make any Holders of such Securities and
Coupons appertaining thereto parties to any such proceedings.
SECTION 5.3 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 any Coupons appertaining thereto in respect of which
moneys have been collected and stamping (or otherwise noting) thereon
the payment, or issuing Securities of such series in reduced principal
amounts in exchange for the presented Securities of like series if only
partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to
such series in respect of which moneys have been collected,
including reasonable compensation to the Trustee and each
predecessor Trustee and their respective agents and attorneys and
of all expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith, and all other amounts due to the Trustee
or any predecessor Trustee pursuant to Section 6.6;
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 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 payment of such
interest is permissible by law and that such interest has been
collected by the Trustee) upon overdue installments of interest
at the same rate as the rate of interest 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 without preference or priority of
principal over interest or of interest 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; and
FOURTH: To the payment of the remainder, if any, to the
Issuer or any other person lawfully entitled thereto.
SECTION 5.4 Suits for Enforcement. In case an Event of Default
has occurred, has not been waived and is continuing, the Trustee may in
its discretion proceed to protect and enforce the rights vested in it
by this Indenture by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any of such
rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power
granted in this Indenture or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to
the Trustee, then and in every such case the Issuer and the Trustee
shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Issuer, the
Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
SECTION 5.6 Limitations on Suits by Securityholders. No Holder
of any Security of any series or Holder of any Coupon shall have any
right by virtue or by availing of any provision of this Indenture to
institute any action or proceeding at law or in equity or in bankruptcy
or otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or other
similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default
and of the continuance thereof, as hereinbefore provided, and unless
also the Holders of not less than 25% in aggregate principal amount of
the Securities of such series then Outstanding shall have made written
request upon the Trustee to institute such action or proceedings in its
own name as trustee hereunder and shall have offered to the Trustee
such reasonable indemnity, as it may require against the costs,
expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer
of indemnity shall have failed to institute any such action or
proceeding and no direction inconsistent with such written request
shall have been given to the Trustee pursuant to Section 5.9; it being
understood and intended, and being expressly covenanted by the taker
and Holder of every Security or Holder of any Coupon appertaining
thereto and the Trustee, that no one or more Holders of Securities of
any series or one or more Holders of any Coupons appertaining thereto
shall have any right in any manner whatever, by virtue or by availing
of any provision of this Indenture to affect, disturb or prejudice the
rights of any other such Holder of Securities or any other Holders of
such Coupons, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Securities of the
applicable series and all the Holders of any Coupons appertaining
thereto. For the protection and enforcement of the provisions of this
Section, each and every Securityholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
SECTION 5.7 Unconditional Right of Securityholders to Institute
Certain Suits. Notwithstanding any other provision in this Indenture
and any provision of any Security or Coupon, the right of any Holder of
any Security and the right of the Holder of any Coupon appertaining
thereto to receive payment of the principal of and interest on such
Security on or after the respective due dates expressed in such
Security, or to institute suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default. Except as provided in Section 5.6, no right or
remedy herein conferred upon or reserved to the Trustee or to the
Securityholders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or
power or shall be construed to be a waiver of any such Event of Default
or an acquiescence therein; and, subject to Section 5.6, every power
and remedy given by this Indenture or by law to the Trustee, to the
Securityholders or to the Holder of any Coupon appertaining thereto may
be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee, the Securityholders or Holders of any Coupon.
SECTION 5.9 Control by Securityholders. The Holders of a
majority in aggregate principal amount of the Securities of each series
affected (with each series treated as a separate class) or of the
Holders of any Coupons appertaining thereto at the time Outstanding
shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to
the Securities of such series by this Indenture; provided that such
direction shall not be otherwise than in accordance with law and the
provisions of this Indenture and provided further that (subject to the
provisions of Section 6.1) the Trustee shall have the right to decline
to follow any such direction if the Trustee, being advised by counsel,
shall determine that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith by its board of
directors, the executive committee, or a trust committee of directors
or Responsible Officers of the Trustee shall determine that the action
or proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that the
actions or forbearances specified in or pursuant to such direction
would be unduly prejudicial to the interests of Holders of the
Securities of all series or of the Holders of any Coupons appertaining
thereto so affected not joining in the giving of said direction, it
being understood that (subject to Section 6.1) the Trustee shall have
no duty to ascertain whether or not such actions or forbearances are
unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee
in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction or directions by
Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the declaration
of the acceleration of the maturity of the Securities of any series as
provided in Section 5.1, the Holders of a majority in aggregate
principal amount of the Securities of such series at the time
Outstanding (each such series voting as a separate class) may on behalf
of the Holders of all the Securities of such series waive any past
default or Event of Default described in Section 5.1 which relates to
Securities of such series then Outstanding, except a default in the
payment of principal or of interest on the Securities of such series or
in respect of a covenant or provision hereof which cannot be modified
or amended with the consent of each Holder affected as provided in
Section 8.2. In the case of any such waiver, the Issuer, the Trustee
and the Holders of the Securities of each series affected shall be
restored to their former positions and rights hereunder, respectively.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of
Default arising therefrom shall be deemed to have been cured and not to
have occurred for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
SECTION 5.11 Trustee to Give Notice of Default, But May Withhold
in Certain Circumstances. The Trustee shall transmit to the
Securityholders of any series, as the names and addresses of such
Holders appear on the registry books, notice by mail of all defaults
which have occurred with respect to such series, such notice to be
transmitted within 90 days after the occurrence thereof, unless such
defaults shall have been cured before the giving of such notice (the
term "default" or "defaults" for the purposes of this Section being
hereby defined to mean any event or condition which is, or with notice
or lapse of time or both would become, an Event of Default); provided
that, except in the case of default in the payment of the principal of
or interest on any of the Securities of such series, the Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors
or trustees or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of
the Securityholders of such, series.
SECTION 5.12 Right of Court to Require Filing of Undertaking to
Pay Costs. All parties to this Indenture agree, and each Holder of any
Security and each Holder of any Coupon, by his acceptance thereof,
shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Securityholder or group of Securityholders of
any series holding in the aggregate more than 10% in aggregate
principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clause (d) of Section 5.1 (if the
suit relates to Securities of more than one but less than all series),
10% in aggregate principal amount of Securities Outstanding affected
thereby, or in the case of any suit relating to or arising under clause
(d) (if the suit under clause (d) relates to all the Securities then
Outstanding), (e), (f) or (g) of Section 5.1, 10% in aggregate
principal amount of all Securities Outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of
the principal of or interest on any Security on or after the due date
expressed in such Security.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an
Event of Default with respect to the Securities of a particular series
and after the curing or waiving of all Events of Default which may have
occurred with respect to such series, undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture.
In case an Event of Default with respect to the Securities of a series
has occurred (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or
waiving of all such Events of Default with respect to such series
which may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any Series shall be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth
in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions
expressed therein, upon any statements, certificates or
opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent
facts; and
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders pursuant to Section
5.9 relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if there shall be reasonable
ground for believing that the repayment of such funds or adequate
indemnity against such liability is not reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and
subject to Sections 315 and 316 of the Trust Indenture Act.
SECTION 6.2 Certain Rights of the Trustee. In furtherance of and
subject to the Trust Indenture Act, and subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, Officers'
Certificate or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond,
debenture, note, coupon, security or other paper or document
believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of
Directors may be evidenced to the Trustee by a copy thereof
certified by the secretary or an assistant secretary of the
Issuer;
(c) the Trustee may consult with counsel and any advice or
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 accordance with
such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by this Indenture at the
request, order or direction of any of the Securityholders
pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized
or within the discretion, rights or powers conferred upon it by
this Indenture;
(f) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of
Default, the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing
to do so by the Holders of not less than a majority in aggregate
principal amount of the Securities of all series affected then
Outstanding; provided that, if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee
by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such
expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by
the Issuer or, if paid by the Trustee or any predecessor Trustee,
shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys not regularly in its employ and
the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed
with due care by it hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained
herein and in the Securities, except the Trustee's certificate of
authentication, shall be taken as the statements of the Issuer, and the
Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representation as to the validity or sufficiency of
this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities; Collections,
etc. The Trustee, any Paying Agent, Security Registrar, or any agent
of the Issuer or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities or Coupons with the same
rights it would have if it were not the Trustee or such agent and, if
operative, may otherwise deal with the Issuer and receive, collect,
hold and retain collections from the Issuer with the same rights it
would have if it were not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the provisions of
Section 10.4 hereof, all moneys received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes
for which they were received, but need not be segregated from other
funds except to the extent required by mandatory provisions of law.
Neither the Trustee nor any agent of the Issuer or the Trustee shall be
under any liability for interest on any moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and Its
Prior Claim. The Issuer covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to,' reasonable
compensation (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) and the
Issuer covenants and agrees to pay or reimburse the Trustee and each
predecessor Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
counsel and of all agents and other persons not regularly in its
employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Issuer also covenants to
indemnify the Trustee and each predecessor Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts
hereunder and its duties hereunder, including the costs and expenses of
defending itself against or investigating any claim of liability in the
premises. The obligations of the Issuer under this Section to
compensate and indemnify the Trustee and each predecessor Trustee and
to pay or reimburse the Trustee and each predecessor Trustee for
expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge
of this Indenture. Such additional indebtedness shall be a senior claim
to that of the Securities upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the benefit of
the Holders of particular Securities or the Holders of particular
Coupons, and the Securities are hereby subordinated to such senior
claim. When the Trustee incurs expenses, after the occurrence of an
Event of Default specified in Section 5.1(e) or (f), the expenses are
intended to constitute expenses of administration under applicable
bankruptcy laws.
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate,
etc. Subject to Sections 6.1 and 6.2, whenever in the administration of
the trusts of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or
suffering or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in
the absence of negligence or bad faith on the part of the Trustee, be
deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted
by it or under the provisions of this Indenture upon the faith thereof.
.
SECTION 6.8 Disqualification; Conflicting Interests. If the
Trustee has or shall acquire a conflicting interest within the meaning
of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this
Indenture.
SECTION 6.9 Persons Eligible for Appointment as Trustee. The
Trustee for each series of Securities hereunder shall at all times be a
corporation organized and doing business under the laws of the United
States of America or of any State or the District of Columbia having a
combined capital and surplus of at least $50,000,000, and which is
eligible in accordance with the provisions of Section 310(a) of the
Trust Indenture Act. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of a federal,
state or District of Columbia supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
SECTION 6.10 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all
series of Securities by giving written notice of resignation to the
Issuer and by mailing notice thereof by first class mail to Holders of
the applicable series of Securities at their last addresses as then
shall appear on the Security register. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or
trustees with respect to the applicable series by written instrument in
duplicate, executed by authority of the Board of Directors of the
Issuer, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee or trustees. If
no successor trustee shall have been so appointed with respect to any
series and have accepted appointment within 30 days after the mailing
of such notice of resignation, the resigning trustee may petition any
court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a
Security or Securities of the applicable series for at least six months
may, subject to the provisions of Section 5.12, on behalf of himself
and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310 (b) of the Trust Indenture Act with respect to any
series of Securities after written request therefor by the Issuer
or by any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 310 (a) of the Trust Indenture Act
and shall fail to resign after written request therefor by the
Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with
respect to any series of the Securities, or shall be adjudged a
bankrupt or insolvent, or a receiver or liquidator of the Trustee
or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation;
then in any such case, the Issuer may remove the Trustee with respect
to the applicable series of Securities and appoint a successor trustee
for such series by written instrument, in duplicate, executed by order
of the Board of Directors of the Issuer, one copy of which instrument
shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Section 315(e) of
the Trust Indenture Act of 1939, any Securityholder who has been a bona
fide Holder of a Security or Securities of such series for at least six
months may on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor trustee with respect to such
series. Such court may thereupon, after such notice, if any, as it may
deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The Holders of a majority in aggregate principal amount of
the Securities of each series at the time Outstanding may at any time
remove the Trustee with respect to Securities of such series and
appoint a successor trustee with respect to the Securities of such
series by delivering to the Trustee so removed, to the successor
trustee so appointed and to the Issuer the evidence provided for in
Section 7.1 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 6.10 shall
become effective upon acceptance of appointment by the successor
trustee as provided in Section 6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute
and deliver to the Issuer and to its predecessor Trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or
removal of the predecessor Trustee with respect to all or any
applicable series shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with
all rights, powers, duties and obligations with respect to such series
of its predecessor hereunder, with like effect as if originally named
as trustee for such series hereunder; but, nevertheless, on the written
request of the Issuer or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to
Section 10.4, pay over to the successor trustee all moneys at the time
held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties
and obligations. Upon request of any such successor trustee, the Issuer
shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such
rights and powers. Any trustee ceasing to act shall, nevertheless,
retain a prior claim upon all property or funds held or collected by
such trustee to secure any amounts then due it pursuant to the
provisions of Section 6.6.
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer the
predecessor Trustee and each successor trustee with respect to the
Securities of any applicable series shall execute and deliver an
indenture supplemental hereto which shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the predecessor Trustee with respect to
the Securities of any series as to which the predecessor Trustee is not
retiring shall continue to be vested in the predecessor Trustee, and
shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such
trustees co-trustees of the same trust and that each such trustee shall
be trustee of a trust or trusts under separate indentures.
Upon acceptance of appointment by any successor trustee as
provided in this Section 6.11, the Issuer shall mail notice thereof by
first-class mail to the Holders of Securities of any series for which
such successor trustee is acting as trustee at their last addresses as
they shall appear in the Security register. If the acceptance of
appointment is substantially contemporaneous with the resignation, then
the notice called for by the preceding sentence may be combined with
the notice called for by Section 6.10. If the Issuer fails to mail such
notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to
which the Trustee shall be a party, or any corporation succeeding to
the corporate trust business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such corporation shall be eligible
under the provisions of Section 6.9, without the execution or filing of
any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed
to the trusts created by this Indenture any of the Securities of any
series shall have been authenticated but not delivered, any such
successor to the Trustee may adopt the certificate of authentication of
any predecessor Trustee and deliver such Securities so authenticated;
and, in case at that time any of the Securities of any series shall not
have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor Trustee hereunder
or in the name of the successor Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the
certificate of the Trustee shall have; provided, that the right to
adopt the certificate of authentication of any predecessor Trustee or
to authenticate Securities of any series in the name of any predecessor
Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. (a) Any
request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by a
specified percentage in principal amount of the Securityholders of any
or all series may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such specified
percentage of Securityholders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are
delivered to the Trustee. Proof of execution of any instrument or of a
writing appointing any such agent shall be sufficient for any purpose
of this Indenture and (subject to Sections 6.1 and 6.2) conclusive in
favor of the Trustee, the Issuer, if made in the manner provided in
this Article.
(b) The ownership of Registered Securities shall be proved by the
Security register.
(c) The amount of Unregistered Securities held by any Person
executing any instrument or writing as a Securityholder, the numbers of
such Unregistered Securities, and the date of his holding the same may
be proved by the production of such Securities or by a certificate
executed by any trust company, bank, broker or member of a national
securities exchange (wherever situated), as depositary, if such
certificate is in form satisfactory to the Trustee, showing that at the
date therein mentioned such Person had on deposit with such depositary,
or exhibited to it, the Unregistered Securities therein described; or
such facts may be proved by the certificate or affidavit of the Person
executing such instrument or writing as a Securityholder, if such
certificate or affidavit is in form satisfactory to the Trustee. The
Trustee and the Issuer may assume that such ownership of any
Unregistered Security continues until (i) another certificate or
affidavit bearing a later date issued in respect of the same
Unregistered Security is produced, or (ii) such Unregistered Security
is produced by some other person, or (iii) such Unregistered Security
is surrendered in exchange for a Registered Security, or (iv) such
Unregistered Security has been canceled in accordance with Section 2.10.
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any
instrument by a Securityholder or his agent or proxy may be proved in
accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee. The holding of Securities shall be proved by the Security
register or by a certificate of the registrar thereof. The Issuer may
set a record date for purposes of determining the identity of holders
of Securities of any series entitled to vote or consent to any action
referred to in Section 7.1, which record date may be set at any time or
from time to time by notice to the Trustee, for any date or dates ( in
the case of any adjournment or reconsideration) not more than 60 days
nor less than five days prior to the proposed date of such vote or
consent, and thereafter, notwithstanding any other provisions hereof,
only holders of Securities of such series of record on such record date
shall be entitled to so vote or give such consent or revoke such vote
or consent.
SECTION 7.3 Holders to Be Treated as Owners. The Issuer, the
Trustee and any Agent of the Issuer or the Trustee may deem and treat
the person in whose name any Security shall be registered upon the
Security register for such series as the absolute owner of such
Security (whether or not such Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for
the purpose of receiving payment of or on account of the principal of
and interest on such Security and for all other purposes; and neither
the Issuer nor the Trustee nor any Agent of the Issuer or the Trustee
shall be affected by any notice to the contrary. All such payments so
made to any such person, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge
the liability for moneys payable upon any such Security.
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal
amount of Outstanding Securities of any or all series have concurred in
any direction, consent or waiver under this Indenture, or are to be
selected for any redemption or optional repayment, Securities which are
owned by the Issuer or any other obligor on the Securities with respect
to which such determination is being made or by any person directly or
indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or any other obligor on the Securities
with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction,
consent or waiver only Securities which the Trustee knows are so owned
shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the Issuer or
any other obligor upon the Securities or any person directly or
indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or any other obligor on the Securities.
In case of a dispute as to such right, the advice of counsel shall be
full protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the Issuer
shall furnish to the Trustee promptly an Officers' Certificate listing
and identifying all Securities, if any, known by the Issuer to be owned
or held by or for the account of any of the above-described persons;
and, subject to Sections 6.1 and 6.2, the Trustee shall be entitled to
accept such Officers' Certificate as conclusive evidence of the facts
therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in
Section 7.1, of the taking of any action by the Holders of the
percentage in aggregate principal amount of the Securities of any or
all series, as the case may be, specified in this Indenture in
connection with such action, any Holder of a Security the serial number
of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such
action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Article, revoke such action
so far as concerns such Security. Except as aforesaid any such action
taken by the Holder of any Security shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such
Security and of any Securities issued in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto
is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or
all series, as the case may be, specified in this Indenture in
connection with such action shall be conclusively binding upon the
Issuer, the Trustee and the Holders of all the Securities affected by
such action.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its
Board of Directors, and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto for one
or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any
property or assets;
(b) to evidence the succession of another corporation to
the Issuer, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and
obligations of the Issuer pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as their
respective Boards of Directors and the Trustee shall consider to
be for the protection of the Holders of Securities, and to make
the occurrence, or the occurrence and continuance, of a default
in any such additional covenants, restrictions, conditions or
provisions an Event of Default permitting the enforcement of all
or any of the several remedies provided in this Indenture as
herein set forth; provided, that in respect of any such
additional covenant, restriction, condition or provision such
supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than
that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such an Event of Default or may limit
the remedies available to the Trustee upon such an Event of
Default or may limit the right of the Holders of a majority in
aggregate principal amount of the Securities of such series to
waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which
may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture; or to make
such other provisions in regard to matters or questions arising
under this Indenture or under any supplemental indenture as the
Board of Directors of the Issuer may deem necessary or desirable
and which shall not in any material way adversely affect the
interests of the Holders of the Securities or the Holders of any
Coupons;
(e) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 2.3; or
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with respect to the
Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by
more than the one trustee, pursuant to the requirements of
Section 6.11.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained
and to accept the conveyance, transfer, assignment, mortgage or pledge
of any property thereunder, but the Trustee shall not be obligated to
enter into any such supplemental indenture which affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of
the Securities at the time Outstanding, notwithstanding any of the
provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in Article
Seven) of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding of all
series affected by such supplemental indenture (treated as one class),
the Issuer, when authorized by a resolution of its Boards of Directors,
and the Trustee may, from time to time and at any time, enter into an
indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of
each such series; provided, that no such supplemental indenture shall
(a) extend the final maturity of any Security, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption thereof,
or impair or affect the right of any Securityholder to institute suit
for the payment thereof or, if the Securities provide therefor, any
right of repayment at the option of the Securityholder without the
consent of the Holder of each Security so affected, or (b) reduce the
aforesaid percentage of Securities of any series, the consent of the
Holders of which is required for any such supplemental indenture,
without the consent of the Holders of all Outstanding Securities of the
series affected.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors of the Issuer authorizing the
execution of any such supplemental indenture, and upon the filing with
the Trustee of evidence of the consent of Securityholders as aforesaid
and other documents, if any, required by Section 7.1, the Trustee shall
join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders
under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the
Issuer shall mail a notice thereof by first class mail to the Holders
of Securities of each series affected thereby at their addresses as
they shall appear on the registry books of the Issuer, setting forth in
general terms the substance of such supplemental indenture. Any failure
of the Issuer to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee,
the Issuer and the Holders of Securities of each series and Holders of
Coupons affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions
of this Indenture for any and all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an
Officers' Certificate from the Issuer and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant
to this Article Eight complies with the applicable provisions of this
Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after
the execution of any supplemental indenture pursuant to the provisions
of this Article may bear, upon the direction of the Issuer, a notation
in form satisfactory to the Trustee for such series as to any matter
provided for by such supplemental indenture or as to any action taken
at any such meeting. If the Issuer or the Trustee shall so determine,
new Securities of any series so modified as to conform, in the opinion
of the Trustee and the Boards of Directors of the Issuer, to any
modification of this Indenture contained in any such supplemental
indenture may be prepared by the Issuer, authenticated by the Trustee
and delivered in exchange for the Securities of such series then
outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms. The
Issuer covenants that it will not merge or consolidate with any other
Person or sell or convey all or substantially all of its assets to any
Person, unless (i) either the Issuer shall be the continuing
corporation, or the successor Person or the Person which acquires by
sale or conveyance substantially all the assets of the Issuer (if other
than the Issuer) shall be a Person organized under the laws of the
United States of America or any State thereof and shall expressly
assume the due and punctual payment of the principal of and interest on
all the Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of
this Indenture to be performed or observed by the Issuer, by
supplemental indenture satisfactory to the Trustee, executed and
delivered to the Trustee by such Person, and (ii) the Issuer or such
successor corporation, as the case may be, shall not, immediately after
such merger or consolidation, or such sale or conveyance, be in default
in the performance of any such covenant or condition.
SECTION 9.2 Successor Substituted. In case of any such
consolidation, merger, sale or conveyance, and following such an
assumption by the successor, such successor ^ shall succeed to and be
substituted for the Issuer, with the same effect as if it had been
named herein. Such successor may cause to be signed, and may issue
either in its own name or in the name of the Issuer prior to such
succession any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and delivered to
the Trustee; and, upon the order of such successor instead of the
Issuer and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities of the Issuer which previously shall have been signed
and delivered by the officers of the Issuer to the Trustee for
authentication, and any Securities which such successor thereafter
shall cause to be signed and delivered to the Trustee for that purpose.
All of the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date
of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance such changes in phraseology and form (but not in substance)
may be made in the Securities thereafter to be issued as may be
appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease) the Issuer or any successor which shall
theretofore have become such in the manner described in this Article
shall be discharged from all obligations and covenants under this
Indenture and the Securities and may be liquidated and dissolved.
SECTION 9.3 Opinion of Counsel to Trustee. The Trustee, subject
to the provisions of Sections 6.1 and 6.2, may receive an Opinion of
Counsel, prepared in accordance with Section 11.5, as conclusive
evidence that any such consolidation, merger, sale, lease or
conveyance, and any such assumption, and any such liquidation or
dissolution, complies with the applicable provisions of this Indenture.
ARTICLE TEN
DEFEASANCE AND COVENANT DEFEASANCE; UNCLAIMED MONEYS
SECTION 10.1 Issuer's Option to Effect Defeasance or Covenant
Defeasance. The Issuer may elect, at its option at any time, to have
Section 10.2 or Section 10.3 applied to any Securities or any series of
Securities, as the case may be, designated pursuant to Section 2.3 as
being defeasible pursuant to such Section 10.2 or 10.3, in accordance
with any applicable requirements provided pursuant to Section 2.3 and
upon compliance with the conditions set forth below in this Article.
Any such election shall be established by or made pursuant to a
resolution of the Board of Directors.
SECTION 10.2. Defeasance and Discharge. Upon the Issuer's
exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, the Issuer
shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the
date the conditions set forth in Section 10.4 are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance
means that the Issuer shall be deemed to have paid and discharged the
entire indebtedness represented by such Securities and to have
satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Issuer, shall execute proper instruments
acknowledging the same), subject to the following, which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of
Holders of such Securities to receive, solely from the trust fund
described in Section 10.4 and as more fully set forth in such Section,
payments in respect of the principal of and any premium and interest on
such Securities when payments are due, (b) the Issuer's obligations
with respect to such Securities under Sections 2.8, 2.9, 2.11, 3.2 and
3.4, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder; and (d) this Article; and (e) any payment
obligations in respect of Securities of such series and any related
coupons which are deemed not to be Outstanding under clause (c) of the
definition thereof if such obligations continue to be valid obligations
of the Company under applicable law. Subject to compliance with this
Article, the Issuer may exercise its option (if any) to have this
Section applied to any Securities notwithstanding the prior exercise of
its option (if any) to have Section 10.3 applied to such Securities.
SECTION 10.3. Covenant Defeasance. Upon the Issuer's exercise
of its option (if any) to have this Section applied to any Securities
or any series of Securities, as the case may be, (a) the Issuer shall
be released from its obligations under Section 3.6, 3.7, 3.9 and 3.10,
and any covenants provided pursuant to Section 2.3(12), 8.1(c) or
8.1(e), for the benefit of the Holders of such Securities and (b) the
occurrence of any event specified in Section 5.1(d) (with respect to
any of Sections 3.6, 3.7, 3.9 and 3.10 inclusive, and any such
covenants provided pursuant to Section 2.3(12), 8.1(c) or 8.1(e) and
5.1(h) shall be deemed not to be or result in an Event of Default, in
each case with respect to such Securities as provided in this Section
on and after the date the conditions set forth in Section 10.4 are
satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that, with respect to such
Securities, the Issuer may omit to comply with and shall have no
liability in respect of any term, condition or limitation set froth in
any such specified Section (to the extent so specified in the case of
Section 5.1(d)), whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any
other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
SECTION 10.4. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section
10.2 or Section 10.3 to any Securities or any series of Securities, as
the case may be:
(a) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee which
satisfies the requirements contemplated by Section 6.9 and agrees
to comply with the provisions of this Article applicable to it)
as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated
solely to, the benefits of the Holders of such Securities, (A)
money in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in
an amount, or (C) a combination thereof, in each case sufficient,
in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or any such other qualifying trustee)
to pay and discharge, the principal of and any premium and
interest on such Securities on the respective Stated Maturities,
in accordance with the terms of this Indenture and such
Securities. As used herein, "U.S. Government Obligation" means
(x) any security which is (i) a direct obligation of the United
States of America for the payment of which the full faith and
credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as
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, which, in
either case (i) or (ii), is not callable or redeemable at the
option of the issuer thereof, and (y) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities
Act of 1933) as custodian with respect to any U.S. Government
Obligation which is specified in Clause (x) above and held by
such bank for the account of the holder of such depositary
receipt, or with respect to any specific payment of principal of
or interest on any U.S. Government Obligation which is so
specified and held, 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 depositary receipt from any
amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal or
interest evidenced by such depositary receipt.
(b) In the event of an election to have Section 10.2
apply to any Securities or any series of Securities, as the case
may be, the Issuer shall have delivered to the Trustee an Opinion
of Counsel stating that (A) the Issuer has received from, or
there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this instrument, there has been a
change in the applicable Federal income tax law, in either case
(A) or (B) to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Securities will not
recognize gain or loss for Federal income tax purposes as a
result of the deposit, Defeasance and discharge to be effected
with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same
times as would be the case if such deposit, Defeasance and
discharge were not to occur.
(c) In the event of an election to have Section 10.3
apply to any Securities or any series of Securities, as the case
may be, the Issuer shall have delivered to the Trustee an Opinion
of Counsel or a ruling published by the Internal Revenue Service
to the effect that the Holders of such Securities will not
recognize gain or loss for Federal income tax purposes as a
result of the deposit and Covenant Defeasance to be effected with
respect to such Securities and will be subject to Federal income
tax on the same amount, in the same manner and at the same times
as would be the case if such deposit and Covenant Defeasance were
not to occur.
(d) The Issuer shall have delivered to the Trustee an
Opinion of Counsel or letter or other document from an applicable
securities exchange to the effect that neither such Securities
nor any other Securities of the same series, if then listed on
any securities exchange, will be deleted as a result of such
deposit.
(e) No event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to such
Securities or any other Securities shall have occurred and be
continuing at the time of such deposit or, with regard to any
such event specified in Sections 5.1(e) and (f) at any time on or
prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied
until after such 90th day).
(f) Such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest within the
meaning of the Trust Indenture Act (assuming all Securities are
in default within the meaning of such Act).
(g) Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default
under, any other agreement or instrument to which the Issuer is a
party or by which it is bound.
(h) Such Defeasance or Covenant Defeasance shall not
result in the trust arising from such deposit constituting an
investment company within the meaning of the Investment Company
Act unless such trust shall be registered under such Act or
exempt from registration thereunder.
(i) The Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating
that all conditions precedent with respect to such Defeasance or
Covenant Defeasance have been complied with.
SECTION 10.5. Deposited Money and U.S. Government Obligations to
be Held in Trust; Miscellaneous Provisions. Subject to Section 10.7,
all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or other qualifying trustee (solely
for purposes of this Section and Section 10.6, the Trustee and any such
other trustee are referred to collectively as the "Trustee") pursuant
to Section 10.4 in respect of any Securities shall be held in trust and
applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or
through any such Paying Agent (including the Issuer acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of
principal and any premium and interest, but money so held in trust need
not be segregated from other funds except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 10.4 or the principal and
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.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon
Issuer Request any money or U.S. Government Obligations held by it as
provided in Section 10.4 with respect to any Securities which, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, are in excess of the amount thereof, which would then be
required to be deposited to effect the Defeasance or Covenant
Defeasance, as the case may be, with respect to such Securities.
SECTION 10.6. Reinstatement. If the Trustee or the Paying Agent
is unable to apply any money in accordance with this Article with
respect to any Securities by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations under this Indenture
and such Securities from which the Issuer has been discharged or
released pursuant to Section 10.2 or 10.3 shall be revived and
reinstated as though no deposit had occurred pursuant to this Article
with respect to such Securities, until such time as the Trustee or
Paying Agent is permitted to apply all money held in trust pursuant to
Section 10.5 with respect to such Securities in accordance with this
Article; provided, however, that if the Issuer makes any payment of
principal of or any premium or interest on any such Security following
such reinstatement of its obligations, the Issuer shall be subrogated
to the rights (if any) of the Holders of such Securities to receive
such payment from the money so held in trust.
SECTION 10.7 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the
Trustee or any Paying Agent for the payment of the principal of or
interest on any Security of any series or Coupons and not applied but
remaining unclaimed for two years after the date upon which such
principal or interest shall have become due and payable, shall, upon
the written request of the Issuer and unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed
property law, be repaid to the Issuer by the Trustee for such series or
such Paying Agent, and the Holder of the Security of such series or
Holders of Coupons appertaining thereto shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, thereafter look only to the Issuer for any
payment which such Holder may be entitled to collect, and all liability
of the Trustee or any Paying Agent with respect to such moneys shall
thereupon cease.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors
of Issuer Exempt from Individual Liability. No recourse under or upon
any obligation, covenant or agreement contained in this Indenture, in
any Security or Coupon 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 or
director, as such, of the Issuer or of any successor, either directly
or through the Issuer 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
by the Holders thereof and as part of the consideration for the issue
of the Securities.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders. Nothing in this Indenture or in the
Securities, expressed or implied, shall give or be construed to give to
any Person, firm or corporation, other than the parties hereto, any
Paying Agent and their successors hereunder and the Holders of the
Securities and Coupons, if any, any legal or equitable right, remedy or
claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit
of the parties hereto and their successors and of the Holders of the
Securities.
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture.
All the covenants, stipulations, promises and agreements in this
Indenture contained by or on behalf of the Issuer shall bind its
successors and assigns, whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee and
Securityholders. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the
Trustee, by the Holders of Securities, or by the Holders of Coupons to
or on the Issuer may be given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address of the Issuer is filed by the
Issuer with the Trustee) to Ralcorp Holdings, Inc., P. O. Box 618, St.
Louis, Missouri 63188-0618. Any notice, direction, request or demand by
the Issuer or any Securityholder to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if given or
made at the Corporate Trust Office.
Where this Indenture provides for notice to Holders of any event,
(I) if any of the Securities affected by such event are Registered
Securities, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed by first-class
mail, postage prepaid to such Registered Holders as their names and
addresses appear in the Security register within the time prescribed
and (2) if any of the Securities affected by such event are
Unregistered Securities, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if published once in a
newspaper of general circulation in New York, New York and London,
England within the time prescribed. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such notice. Waivers
of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect
in any notice so mailed to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders, and any
notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the
Issuer and Securityholders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to
be a sufficient giving of such notice.
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by
the Issuer to the Trustee to take any action under any of the
provisions of this Indenture, the Issuer shall furnish to the Trustee
an Officers' Certificate stating that all conditions precedent provided
for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which
the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
demand, no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (a) a statement
that the person making such certificate or opinion has read such
covenant or condition, (b) a brief statement as to the nature and scope
of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based, (c) a
statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with and (d) a statement as to whether or not, in the
opinion of such person, such condition or covenant has been complied
with.
Any certificate, statement or opinion of an officer of the Issuer
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such
officer knows that the certificate or opinion or representations with
respect to the matters upon which his certificate, statement or opinion
may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as
it relates to factual matters, information with respect to which is in
the possession of the Issuer, upon the certificate, statement or
opinion of or representations by an officer or officers of the Issuer;
unless such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer
or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an
accountant or firm of accountants in the employ of the Issuer, unless
such officer or counsel, as the case may be, knows that the certificate
or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such
firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. If
the date of maturity of interest on or principal of the Securities of
any series or Coupons appertaining thereto or the date fixed for
redemption or repayment of any such Security or Coupon shall not be a
Business Day, then payment of interest, premium, if any, or principal
need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest shall accrue
for the period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision
included in this Indenture by operation of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939 (an "incorporated
provision"), such incorporated provision shall control.
SECTION 11.8 New York Law to Govern. This Indenture and each
Security shall be deemed to be a contract under the laws of the State
of New York, and for all purposes shall be construed in accordance with
the laws of such State.
SECTION 11.9 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10 Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the
retirement of Securities of a series except as otherwise specified as
contemplated by Section 2.3 for Securities of such series.
SECTION 12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as
a whole or in part at the option of the Issuer shall be given by
mailing notice of such redemption by first-class mail, postage prepaid,
at least 30 days and not more than 60 days prior to the date fixed for
redemption to such Holders of Securities of such series at their last
addresses as they shall appear upon the registry books. Any notice
which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives
the notice. Failure to give notice by mail, or any defect in the notice
to the Holder of any Security of a series designated for redemption as
a whole or in part shall not affect the validity of the proceedings for
the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to
be redeemed, the date fixed for redemption, the redemption price, the
place or places of payment, that payment will be made upon presentation
and surrender of such Securities, and that, unless otherwise specified
in such notice, Unregistered Coupon Securities, if any, surrendered for
payment must be accompanied by all Coupons maturing subsequent to the
redemption date, failing which the amount of any such missing Coupon or
Coupons will be deducted from the sum due for payment, 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, the notice of redemption shall state the portion
of the principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series in principal
amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Issuer shall be given by the Issuer or,
at the Issuer's request, by the Trustee in the name and at the expense
of the Issuer.
At least one Business Day prior to the redemption date specified
in the notice of redemption given as provided in this Section, the
Issuer will deposit with the Trustee or with one or more paying agents
(or, if the Issuer is acting as its own paying agent, set aside,
segregate and hold in trust as provided in Section 3.4) an amount of
money sufficient to redeem on the redemption date all the Securities of
such series so called for redemption at the appropriate redemption
price, together with accrued interest to the date fixed for redemption.
If less than all the Outstanding Securities of a series are to be
redeemed, the Issuer will deliver to the Trustee at least 60 days prior
to the date fixed for redemption an Officers' Certificate stating the
aggregate principal amount of Securities to be redeemed.
If less than all the Securities of a series are to be redeemed,
the Trustee shall select, in such manner as it shall deem appropriate
and fair, Securities of such series to be redeemed in whole or in part.
Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple
thereof. The Trustee shall promptly notify the Issuer in writing of
the Securities 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 of any series shall relate, in
the case of any Security redeemed or to be redeemed only in part, to
the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the Securities
or portions of Securities specified in such notice shall become due and
payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date
fixed for redemption, and on and after said date (unless the Issuer
shall default in the payment of such Securities at the redemption
price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall
cease to accrue and, except as provided in Sections 6.5 and 10.4, such
Securities shall cease from and after the date fixed for redemption to
be entitled to any benefit or security under this Indenture, and the
Holders thereof shall have no right in respect of such Securities
except the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption. On presentation and
surrender of such Securities at a place of payment specified in said
notice, said Securities or the specified portions thereof shall be paid
and redeemed by the Issuer at the applicable redemption price, together
with interest accrued thereon to the date fixed for redemption;
provided that any semiannual payment of interest becoming due on the
date fixed for redemption shall be payable to the Holders of such
Securities registered as such on the relevant record date subject to
the terms and provisions of Section 2.4 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 borne by the Security.
Upon presentation of any Security redeemed in part only and the
Coupons appertaining thereto, the Company shall execute and the Trustee
shall authenticate and deliver to or on the order of the Holder
thereof, at the expense of the Company, a new Security or Securities
and the Coupons appertaining thereto, of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so
presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility
for selection for redemption if they are identified by registration and
certificate number in a written statement signed by an authorized
officer of the Issuer 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 Issuer, or (b) an entity specifically
identified in such written statement directly or indirectly controlling
or controlled by or under direct or indirect common control with the
Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein
referred to as an "optional sinking fund payment". The date on which a
sinking fund payment is to be made is herein referred to as the
"sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer
may at its option (a) deliver to the Trustee Securities of such series
theretofore purchased or otherwise acquired (except upon redemption
pursuant to the mandatory sinking fund) by the Issuer or receive credit
for Securities of such series (not previously so credited) theretofore
purchased or otherwise acquired (except as aforesaid) by the Issuer and
delivered to the Trustee for cancellation pursuant to Section 2.7, (b)
receive credit for optional sinking fund payments (not previously so
credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the
Issuer through any optional redemption provision contained in the terms
of such series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price
specified in such Securities.
On or before the sixtieth day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee a
written statement (which need not contain the statements required by
Section 11.5) signed by an authorized officer of the Issuer (a)
specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit
of Securities of such series, (b) stating that none of the Securities
of such series has theretofore been so credited, (c) stating that no
defaults in the payment of interest or Events of Default with respect
to such series have occurred (which have not been waived or cured) and
are continuing, (d) stating whether or not the Issuer intends to
exercise its right to make an optional sinking fund payment with
respect to such series and, if so, specifying the amount of such
optional sinking fund payment which the Issuer intends to pay on or
before the next succeeding sinking fund payment date and (e) specifying
such sinking fund payment date. Any Securities of such series to be
credited and required to be delivered to the Trustee in order for the
Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for
cancellation pursuant to Section 2.10 to the Trustee with such written
statement (or reasonably promptly thereafter if acceptable to the
Trustee). Such written statement shall be irrevocable and upon its
receipt by the Trustee the Issuer shall become unconditionally
obligated to make all the cash payments or payments therein referred
to, if any, on or before the next succeeding sinking fund payment date.
Failure of the Issuer, on or before any such sixtieth day, to deliver
such written statement and Securities specified in this paragraph, if
any, shall not constitute a default but shall constitute, on and as of
such date, the irrevocable election of the Issuer (i) that the
mandatory sinking fund payment for such series due on the next
succeeding sinking fund payment date shall be paid entirely in cash
without the option to deliver or credit Securities of such series in
respect thereof and (ii) that the Issuer will make no optional sinking
fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment
date plus any unused balance of any preceding sinking fund payments
made in cash shall exceed $50,000 (or a lesser sum if the Issuer shall
so request) with respect to the Securities of any particular series,
such cash shall be applied on the next succeeding sinking fund payment
date to the redemption of Securities of such series at the sinking fund
redemption price together with accrued interest to the date fixed for
redemption. If such amount shall be $50,000 or less and the Issuer
makes no such request then it shall be carried over until a sum in
excess of $50,000 is available. The Trustee shall select, in the manner
provided in Section 12.2, for redemption on such sinking fund payment
date a sufficient principal amount of Securities of such series to
absorb said cash, as nearly as may be possible, and shall (if requested
in writing by the Issuer) inform the Issuer of the serial numbers of
the Securities of such series (or portions thereof) so selected.
Securities of any series which are (a) owned by the Issuer or an entity
known by the Trustee to be directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Issuer, as shown by the Security register, and not known to the Trustee
to have been pledged or hypothecated by the Issuer or any such entity
or (b) identified in an Officers' Certificate at least 60 days prior to
the sinking fund payment date as being beneficially owned by, and not
pledged or hypothecated by, the Issuer or an entity directly or
indirectly controlling or controlled by or under direct or indirect
common control with the Issuer shall be excluded from Securities of
such series eligible for selection for redemption. The Trustee, in the
name and at the expense of the Issuer (or the Issuer, if it shall so
request the Trustee in writing) shall cause notice of redemption of the
Securities of such series to be given in substantially the manner
provided in Section 12.2 (and with the effect provided in Section 12.3)
for the redemption of Securities of such series in part at the option
of the Issuer. The amount of any sinking fund payments not so applied
or allocated to the redemption of Securities of such series shall be
added to the next cash sinking fund payment for such series and,
together with such payment, shall be applied in accordance with the
provisions of this Section. Any and all sinking fund moneys held on the
stated maturity date of the Securities of any particular series (or
earlier, if such maturity is accelerated), which are not held for the
payment or redemption of particular Securities of such series shall be
applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest on, the
Securities of such series at maturity.
At least one Business Day before each sinking fund payment date,
the Issuer shall pay to the Trustee in cash or shall otherwise provide
for the payment of all interest accrued to the date fixed for
redemption on Securities to be redeemed on the next following sinking
fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or mail any notice of
redemption of Securities for such series by operation of the sinking
fund during the continuance of a default in payment of interest on such
Securities or of any Event of Default except that, where the mailing of
notice of redemption of any Securities shall theretofore have been
made, the Trustee shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Issuer a sum sufficient
for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of
Default shall occur, and any moneys thereafter paid into the sinking
fund, shall, during the continuance of such default or Event of
Default, be deemed to have been collected under Article Five and held
for the payment of all such Securities. In case such Event of Default
shall have been waived as provided in Section 5.10 or the default cured
on or before the sixtieth day preceding the sinking fund payment date
in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to
the redemption of such Securities.
SECTION 12.6 Repayment at the Option of the Holders. Securities
of any series which are repayable at the option of the Holders thereof
before their stated maturity shall be repaid in accordance with the
terms of the Securities of such series.
The repayment of any principal amount of Securities pursuant to
such option of the Holder to require repayment of Securities before
their stated maturity, for purposes of Section 10.1, shall not operate
as a payment, redemption or satisfaction of the indebtedness
represented by such Securities unless and until the Issuer, at its
option, shall deliver or surrender the same to the Trustee with a
directive that such Securities be canceled.
ARTICLE THIRTEEN
GUARANTEE
SECTION 13.1 Issuer's Option to Have Securities Guaranteed. The
Issuer may elect, at its option at any time, to have Article Thirteen
applied to any Securities or any series of Securities, as the case may
be, designated pursuant to Section 2.3 as being guaranteed pursuant to
Article Thirteen, in accordance with any applicable requirements
provided pursuant to Section 2.3 and upon compliance with the
conditions set forth in Article Thirteen. Any such election shall be
established by or made pursuant to a resolution of the Board of
Directors.
SECTION 13.2 Subsidiary Guarantors. Upon the Issuer's option
(if any) to have this Article applied to any Securities or series of
Securities, as the case may be, the Issuer shall cause its Subsidiaries
executing this Indenture to guarantee such Securities and (a) cause all
of its Subsidiaries, direct or indirect, which after the date of this
Indenture constitute in the aggregate at least 99% of the Company's
Consolidated Total Assets, Consolidated Net Earnings, Consolidated
Revenues, and Consolidated Equity to execute a Guarantee of the
Securities in the form set forth in this Article Thirteen hereof and
Exhibit A hereto, provided that no Subsidiary organized outside of the
United States of America shall be required to be a Guarantor, and (b)
deliver to the Trustee an Opinion of Counsel, in form reasonably
satisfactory to the Trustee, that any Guarantee executed after the date
of this Indenture is a valid, binding and enforceable obligation of the
applicable Subsidiary, subject to customary exceptions for bankruptcy,
fraudulent conveyance and equitable principles and the implied covenant
of good faith and fair dealing.
SECTION 13.3 Subsidiary Guarantee. Upon the Issuer's exercise
of its option (if any) to have this Article applied to any Securities
or any series of Securities, as the case may be, each of the Guarantors
hereby jointly, severally and unconditionally guarantee to each Holder
of a Security authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity
and enforceability of this Indenture, the Securities or the obligations
of the Issuer hereunder or thereunder, that: (a) the principal of, and
premium, if any, and interest on the Securities will be promptly paid
in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of, premium, if any,
and interest on the Securities, if any, if lawful, and all other
obligations of the Issuer to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and (b) in case of any
extension of time of payment or renewal of any Securities or any of
such other obligations, the same will be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise; provided,
however, that it is the intention of the parties hereto that in no
event shall any Guarantor's obligations under its Guarantee constitute
or result in a violation of any applicable fraudulent conveyance or
similar law of any relevant jurisdiction. Therefore, in the event that
any Guarantee would, but for this sentence, constitute or result in
such a violation, then the liability of a Guarantor under such
Guarantee shall be reduced to the maximum amount permissible under the
applicable fraudulent conveyance or similar law. Failing payment when
due of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Guarantors will be jointly and severally obligated
to pay the same immediately. The Guarantors hereby agree that their
obligations hereunder shall be absolute and unconditional, irrespective
of the validity, regularity or enforceability of the Securities or this
Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder of the Securities with respect to any provisions
hereof or thereof, the recovery of any judgment against the Issuer any
action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a
Guarantor other than the defense that payment has been made or that the
other relevant obligations have been paid or performed. Each Guarantor
hereby waives diligence, presentment, demand of payment, claim of
fraud, filing of claims with a court in the event of insolvency or
bankruptcy of the Issuer, any right to require a proceeding first
against the Issuer, protest, notice and all demands whatsoever and
covenant that this Guarantee will not be discharged except by complete
performance of the obligations contained in the Securities and this
Indenture. If any Holder or the Trustee is required by any court or
otherwise to return to the Issuer or Guarantors, or any custodian,
trustee, liquidator or other similar official acting in relation to
either the Issuer or Guarantors, any amount paid by either to the
Trustee or such Holder, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each
Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed
hereby. Each Guarantor further agrees that, as between the Guarantors,
on the one hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Five for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed
hereby, and (y) in the event of any declaration of acceleration of such
obligations as provided in Article Five such obligations (whether or
not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Guarantee. The Guarantors shall
have the right to seek contribution from any non-paying Guarantor so
long as the exercise of such right does not impair the rights of the
Holders under the Guarantee. The foregoing Guarantee shall rank pari
passu with the guaranties for the benefit of the lenders under the
Credit Agreement.
Each Guarantor shall be subrogated to all rights of each Holder
of any Securities against the Issuer in respect of any amounts paid to
the Holders by such Guarantor pursuant to the provisions of this
Guarantee; provided that the Guarantors shall not be entitled to
enforce, or to receive, any payments arising out of or based upon, such
right of subrogation until the principal of, premium, if any, and
interest on all the Securities shall have been paid in full and nothing
remains owed to the Trustee pursuant to this Indenture.
The Guarantee set forth in this Section 13.3 shall not be valid
or become obligatory for any purpose with respect to a Security until
the certificate of authentication on such Security shall have been
signed by or on behalf of the Trustee.
Unless determined otherwise by the Issuer pursuant to Section
2.3, the Guarantee set forth in this Section 13.3 shall be effective
with respect to any Guarantor only so long as any Indebtedness of the
Issuer is guaranteed by such Guarantor.
SECTION 13.4 Execution and Delivery of Guarantee. Upon the
Issuer's exercise of its option (if any) to have this Article applied
to any Securities or any series of Securities, as the case may be, to
evidence its Guarantee set forth in Section 13.3 hereof, each Guarantor
hereby agrees that a notation of such Guarantee substantially in the
form of Exhibit A shall be endorsed by an officer of such Guarantor on
each Security authenticated and delivered by the Trustee and that this
Indenture shall be executed on behalf of such Guarantor by its
President or one of its Vice Chairmen, Treasurer or Vice Presidents and
attested to by its Secretary of Assistant Secretary.
Each Guarantor hereby agrees that its Guarantee set forth in
Section 13.3 shall remain in full force and effect notwithstanding any
failure to endorse on each Security a notation of such Guarantee.
If a Person whose signature is on this Indenture or on the
Guarantee no longer holds the office under which the Person signed the
Guarantee at the time the Trustee authenticates the Security on which a
Guarantee is endorsed, the Guarantee shall be valid, binding and
enforceable nevertheless.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantee set forth in this Indenture on behalf of Guarantors.
SECTION 13.5 Guarantors May Consolidate, Etc., on Certain Terms.
(a) Except as set forth in Articles Three and Nine hereof,
nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of a Guarantor with or into the
Issuer or another Guarantor or shall prevent any sale or conveyance of
all or substantially all of the assets of a Guarantor, to the Issuer or
another Guarantor. Upon any such consolidation, merger, sale or
conveyance, the Guarantee given by such Guarantor shall no longer have
any force or effect.
(b) Except as set forth in Articles Three and Nine hereof,
nothing contained in this Indenture or in any of the Securities shall
prevent the sale or other disposition by the Issuer or any Subsidiary
of any Guarantor (by sale of capital stock, merger, consolidation or
otherwise) or of all or substantially all of the assets of any
Guarantor to any Person other than the Issuer or any Subsidiary,
provided the Issuer's Subsidiaries constituting in the aggregate not
less than 99% of the Issuer's Consolidated Total Assets, Consolidated
Net Earnings, Consolidated Revenues, and Consolidated Equity determined
after giving effect to such sale or disposition execute and deliver to
the Trustee a Guarantee and, provided, further, that the foregoing
proviso shall not apply to the sale or disposition of a Guarantor in a
foreclosure proceeding to the extent that such proviso would be
inconsistent with the Uniform Commercial Code. Upon delivery by the
Issuer to the Trustee of an Officers' Certificate and an Opinion of
Counsel to the effect that such sale or other disposition was made in
accordance with the provisions of this Indenture, such Guarantor (in
the event of a sale or other disposition of all of the capital stock of
such Guarantor) or the successor corporation or the corporation
acquiring the property and such Guarantor (in the event of a
consolidation or merger or sale or other disposition of all or
substantially all of the assets of a Guarantor) shall automatically be
released and relieved of its obligations under this Article Thirteen,
and the Trustee shall execute any documents reasonably required in
order to evidence the release of any Guarantor from its obligations
under its Guarantee. Any Guarantor not released from its obligations
under its Guarantee shall remain liable for the full amount of
principal of and interest on the Securities and for the other
obligations of any Guarantor under the Indenture as provided in this
Article Thirteen.
SECTION 13.6 "Trustee" to Include Paying Agent. In case at any
time any Paying Agent other than the Trustee shall have been appointed
by the Issuer and be then acting hereunder, the term "Trustee" as used
in this Article Thirteen shall in such case (unless the context shall
otherwise require) be construed as extending to and including such
Paying Agent within its meaning as fully and for all intends and
purposes as if such Paying Agent were named in this Article Thirteen in
place of the Trustee.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above
written.
ATTEST: RALCORP HOLDINGS, INC.
By: /s/ R. W. Lockwood By: /s/ J. R. Micheletto
Secretary J. R. Micheletto
Chief Financial Officer
[CORPORATE SEAL]
ATTEST: THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By /s/ Janice Ott Rotunno By: /s/ R. D. Manella
Assistant Vice President Name: R. D. Manella
Vice President
[CORPORATE SEAL]
ATTEST: BEECH-NUT NUTRITION CORPORATION
/s/ R. W. Lockwood By: /s/ J. R. Micheletto
Secretary J. R. Micheletto
Title: Chief Financial Officer
[CORPORATE SEAL]
ATTEST: BREMNER, INC.
/s/ R. W. Lockwood By: /s/ J. R. Micheletto
Secretary J. R. Micheletto
Title: Chief Financial Officer
[CORPORATE SEAL]
ATTEST: KEYSTONE RESORTS MANAGEMENT, INC.
/s/ R. W. Lockwood By: /s/ J. R. Micheletto
Assistant Secretary J. R. Micheletto
Title: Chief Financial Officer
[CORPORATE SEAL]
ATTEST: RALSTON FOODS, INC.
/s/ R. W. Lockwood By: /s/ J. R. Micheletto
Secretary J. R. Micheletto
Title: Chief Financial Officer
[CORPORATE SEAL]
STATE OF MISSOURI )
) ss.
COUNTY OF CITY OF ST. LOUIS )
On this 23rd day of September, 1994, before me personally came J.
R. Micheletto, to me personally known, who, being by me duly sworn, did
depose and say that he resides at Edwardsville, Missouri, and that he
is Chief Financial Officer of Ralcorp Holdings, Inc., Beech-Nut
Nutrition Corporation, Bremner, Inc., Keystone Resorts Management, Inc.
and Ralston Foods, Inc., the corporations described in and which
executed the above instrument; that he knows the corporate seals of
said corporations; that the seals affixed to said instrument are such
corporate seals; that they were so affixed by authority of the Board of
Directors of said corporations; and that he signed his name thereto by
like authority.
[NOTARIAL SEAL]
/s/ Julie E. Bolte Neiger
Notary Public
Notary Public, State of Missouri
City of St. Louis
My Commission Expires Feb. 21, 1997
STATE OF ILLINOIS )
) ss.
COUNTY OF COOK )
On this 26th day of September, 1994, before me personally came R.
D. Manella, to me personally known, who, being by me duly sworn, did
depose and say that he resides at Buffalo Grove, Illinois; that he is a
Vice President of The First National Bank of Chicago, one of the
corporations described in and which executed the above instrument; that
he knows the corporate seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
[NOTARIAL SEAL]
/s/ /s/ Ann Longino
Notary Public
Notary Public, State of Illinois
My Commission Exp: 05/17/98
EXHIBIT A
[FORM OF NOTATION ON NOTE
RELATING TO GUARANTEE]
GUARANTEE
Each of the Persons listed below (hereinafter referred to as the
"Guarantors," which term includes any successor or additional Guarantor
under the Indenture (the "Indenture") referred to in the Security upon
which this notation is endorsed) (i) has jointly and severally,
unconditionally guaranteed that (a) the principal of, and premium, if
any, and interest on the Securities will be promptly paid in full when
due, whether at maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal of, premium, if any, and interest on
the Securities, if any, if lawful, and all other obligations of the
Issuer to the Holders or the Trustee will be promptly paid in full or
performed, all in accordance with the terms hereof and as set forth in
the Indenture; and (b) in case of any extension of time of payment or
renewal of any Securities or any of such other obligations, the same
will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at stated maturity, by
acceleration, or otherwise; provided, however, ^that in no event shall
any Guarantor's obligations under its Guarantee constitute or result in
a violation of any applicable fraudulent conveyance or similar law of
any relevant jurisdiction. Therefore, in the event that any Guarantee
would, but for this sentence, constitute or result in such a violation,
then the liability of a Guarantor under such Guarantee shall be reduced
to the maximum amount permissible under the applicable fraudulent
conveyance or similar law. Capitalized terms used herein have the
meanings assigned to them in the Indenture unless otherwise indicated.
No stockholder, officer, director, employer or incorporator,
past, present or future, of the Guarantors, as such, shall have any
personal liability under this Guarantee by reason of his or its status
as such stockholder, officer, director, employer or incorporator.
This Guarantee shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the successors
and assigns of the Trustee and the Holders and, in the event of any
transfer or assignment of rights by any Holder or the Trustee, the
rights and privileges herein conferred upon that party shall
automatically extend to and be vested in such transferee or assignee,
all subject to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose
with respect to a Security until the certificate of authentication on
the Security upon which this Guarantee is noted shall have been
executed by or on behalf of the Trustee under the Indenture by the
manual signature of one of its authorized signatories.
This Guarantee shall be effective with respect to any Guarantor
only so long as any Indebtedness of the Issuer is guaranteed by such
Guarantor.
Beech-Nut Nutrition Corporation
Bremner, Inc.
Keystone Resorts Management, Inc.
Ralston Foods, Inc.
By:_______________________________
J. R. Micheletto
Authorized Signatory
FIRST SUPPLEMENTAL INDENTURE
Dated as of January 31, 1997
AMONG
RALCORP HOLDINGS, INC.
GENERAL MILLS, INC.
AND
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
TO
INDENTURE
Dated as of September 23, 1994
AMONG
RALCORP HOLDINGS, INC.
Issuer
BEECH-NUT NUTRITION CORPORATION
BREMMER, INC.
KEYSTONE RESORTS MANAGEMENT, INC.
RALSTON FOODS, INC.
Guarantors
AND
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
==============================================================================
FIRST SUPPLEMENTAL INDENTURE, DATED AS OF January 31, 1997, by and
among Ralcorp Holdings, Inc., a Missouri corporation (the "Company"), General
Mills, Inc., a Delaware corporation ("General Mills"), and The First National
Bank of Chicago, a national banking association, as trustee (the "Trustee").
RECITALS
WHEREAS, the Company and Beech-Nut Nutrition Corporation, Bremner,
Inc., Keystone Resorts Management, Inc., Ralston Foods Inc. (the
"Guarantors"), and the Trustee, entered into an Indenture, dated as of
September 23, 1994 (the "Indenture"), pursuant to the provisions of which the
Company has heretofore issued $150,000,000 in aggregate principal amount of
the Securities (such term and all other defined terms used herein and not
otherwise defined herein shall have the meaning set forth in the Indenture);
and
WHEREAS, pursuant to the terms of the Indenture, on March 12, 1996,
the Guarantors were released from their obligation to guarantee the due and
punctual payment of principal of and interest on the Securities and all other
obligations of the Company under the Indenture; and
WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of
August 13, 1996, among the Company, General Mills and General Mills Missouri,
Inc., a General Mills subsidiary created for the purpose of completing the
Merger (as defined below) ("Merger Sub"), General Mills agreed to acquire
certain businesses of the Company through a merger (the "Merger") of the
Company and Merger Sub to be effective at the close of business on January
31, 1997 (the "Effective Date") subject to approval by the shareholders of
the Company; and
WHEREAS, General Mills, by due corporate action, has determined to
assume by this First Supplemental Indenture the due and punctual payment of
the principal of and interest on all of the Securities and the performance of
every covenant of the Indenture on the part of the Company to be performed or
observed; and
WHEREAS, Section 9.1 of the Indenture provides, among other things,
that the Company will not merge or consolidate with any other Person unless
(i) either the Company shall be the continuing corporation, or the successor
Person shall be a Person organized under the laws of the United States of
America or any State thereof and shall expressly assume the due and punctual
payment of the principal of and interest on all the Securities, according to
their tenor, and the due and punctual performance and observance of all of
the covenants and conditions of the Indenture, by supplemental indenture, and
(ii) there shall be no default immediately after the merger; and
WHEREAS, Section 9.2 of the Indenture provides that in case of any such
merger in accordance with Section 9.1, and following such assumption by the
successor, such successor shall succeed to and be substituted for the
Company, with the same effect as if it had been named in Indenture, and the
Company shall be discharged from all obligations and covenants under the
Indenture; and
WHEREAS, Section 8.1 of the Indenture provides, among other things,
that without the consent of the Holders of any of the Securities, the
Company, when authorized by a resolution of its Board of Directors and the
Trustee may from time to time and at any time enter into an indenture or
supplemental indenture to, among other things, evidence the succession of
another corporation to the Company and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company under
the Indenture; and
WHEREAS, the Company and General Mills, by due corporate actions have
determined to execute a supplemental indenture in substantially the form of
this First Supplemental Indenture, and all things necessary to make this
First Supplemental Indenture a valid, binding and legal agreement have been
done and performed;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, and of other valuable
consideration the receipt whereof is hereby acknowledged, the Company and
General Mills covenant and agree with the Trustee, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
ASSUMPTION OF THE INDENTURE AND THE SECURITIES
Section 1.1 Assumption as to Company. On the Effective Date,
contemporaneous with the Merger, General Mills shall assume the due and
punctual payment of the principal of and interest on all of the Securities
and the performance of every covenant of the Indenture on the part of the
Company to be performed or observed.
ARTICLE II
CLOSING DOCUMENTS
Section 2.1. Documents to be given to Trustee. In accordance with the
provisions of Section 8.4 of the Indenture, the Trustee shall receive from
the Company prior to the Effective Date an Officer's Certificate, certifying
that immediately prior to the Merger there exists no Event of Default under
the Indenture, and an Opinion of Counsel, each satisfying the provisions of
Section 11.5 of the Indenture.
ARTICLE III
MISCELLANEOUS
Section 3.1. Trustee's Acceptance. The Trustee accepts the provisions
of this First Supplemental Indenture upon the terms and conditions set forth
in the Indenture; provided, however, that the foregoing acceptance shall not
make the Trustee responsible in any manner whatsoever for the correctness of
recitals or statements by other parties herein.
Section 3.2. Indenture to Remain in Full Force and Effect. Except as
hereby expressly provided, the Indenture, as supplemented and amended by this
First Supplemental Indenture, is in all respects ratified and confirmed and
all its terms, provisions and conditions shall be and remain in full force
and effect.
Section 3.3. Rights, Etc. of Trustee. All recitals in this First
Supplemental Indenture are made by the Company and General Mills only and not
by the Trustee. All of the provisions contained in the Indenture in respect
of the rights, privileges, immunities, powers and duties of the Trustee shall
be applicable in respect hereof as fully and with like effect as if set forth
herein in full.
Section 3.4. Successors and Assigns. All covenants and agreements in
this First Supplemental Indenture made by the Company and General Mills shall
bind their respective successors and assigns, whether so expressed or not.
Section 3.5. Notices and Demands on Issuer. Any notice or demand
which by any provision of this First Supplemental Indenture or the Indenture
is required or permitted to be given or served by the Trustee, by the Holders
of Securities, or by the Holders of Coupons to or on the Issuer may be given
or served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein or in the Indenture) addressed (until
another address of the Issuer is filed by the Issuer with the Trustee) to
General Mills, Inc., Number One General Mills Blvd., P.O. Box 1113,
Minneapolis, MN 55440, Attention: Corporate Secretary.
Section 3.6. Conflict with Trust Indenture Act. If any provision of
this First Supplemental Indenture limits, qualifies or conflicts with the
duties imposed by operation of Trust Indenture Act Section 318(c), the
imposed duties shall control.
Section 3.7. Governing Law. This First Supplemental Indenture shall
be governed by and construed in accordance with the internal laws, but not
the laws as to conflicts or choice of law, of the State of New York.
Section 3.8. Titles, Headings, Etc. The Article and Section headings
of this First Supplemental Indenture are for convenience only and shall not
affect the construction hereof.
Section 3.9. Separability Clause. In case any provision in this First
Supplemental Indenture 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 3.10. Execution in Counterparts. This First Supplemental
Indenture may be executed in any number of counterparts, each of which shall
be deemed an original, but such counterparts shall together constitute but
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the date and year first
above written.
[Corporate Seal] RALCORP HOLDINGS, INC.
Attest: By: /s/ J. R. Micheletto
Name: J. R. Micheletto
/s/ R. W. Lockwood Title: Chief Executive Officer
R. W. Lockwood and President
Secretary
STATE OF MISSOURI )
) SS
CITY OF ST. LOUIS )
On this 31ST day of January, 1997, before me personally appeared J. R.
Micheletto to me known to be the person described in and who executed the
foregoing instrument; that he or she knows the corporate seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he or she signed their name thereto by like authority.
/s/ Julie E. Neiger
Notary Public
[Corporate Seal] GENERAL MILLS, INC.
Attest: By: /s/ T. J. Brown
Name: T. J. Brown
/s/ Ivy Bernhardson Title: Vice President
Secretary
STATE OF MISSOURI )
) SS
CITY OF ST. LOUIS )
On this 31st day of January, 1997, before me personally appeared T. J.
Brown, to me known to be the person described in and who executed the
foregoing instrument; that he or she knows the corporate seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he or she signed their name thereto by like authority.
/s/ Donna L. Bulback
Notary Public
[Corporate Seal] THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
Attest: By: /s/ T. Marshall
Name: T. Marshall
/s/ Barbara G. Grosse Title: Trust Officer
STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
On this 29TH day of January, 1997, before me personally appeared T.
Marshall, to me known to be the person described in and who executed the
foregoing instrument; that he or she knows the corporate seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he or she signed their name thereto by like authority.
/s/ N. Sierra
Notary Public
