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REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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IBP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 42-0838666
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
</TABLE>
IBP AVENUE
POST OFFICE BOX 515
DAKOTA CITY, NEBRASKA 68731
(402) 494-2061
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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LONNIE O. GRIGSBY, ESQ.
EXECUTIVE VICE PRESIDENT-GENERAL COUNSEL
IBP, INC.
IBP AVENUE
POST OFFICE BOX 515
DAKOTA CITY, NEBRASKA 68731
(402) 494-2061
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO:
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<S> <C>
JAMES L. PURCELL, ESQ. ROBERT M. CHILSTROM, ESQ.
JOHN P. MCENROE, ESQ. JEFFREY W. TINDELL, ESQ.
PAUL, WEISS, RIFKIND, WHARTON & GARRISON SKADDEN, ARPS, SLATE, MEAGHER & FLOM
1285 AVENUE OF THE AMERICAS 919 THIRD AVENUE
NEW YORK, NEW YORK 10019-6064 NEW YORK, NEW YORK 10022-3897
(212) 373-3000 (212) 735-3000
</TABLE>
Approximate date of commencement of proposed sale of the securities to the
public: From time to time after the effective date of this Registration
Statement as determined by market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
OFFERING PRICE PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE PER AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) SECURITY(2)(3)(4) PRICE(2)(3) FEE
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Debt Securities....................... $500,000,000 100% $500,000,000 $172,414
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(1) In United States dollars or the equivalent thereof in a foreign or composite
currency.
(2) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee.
(3) Or, if any Debt Securities are issued (i) at an original issue discount,
such greater principal amount as shall result in an aggregate offering price
equal to $500,000,000 or (ii) with a principal amount denominated in a
foreign or composite currency, such principal amount as shall result in the
aggregate offering price equivalent to $500,000,000 at the time of the
offering.
(4) Plus accrued interest, if any.
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY STATE.
SUBJECT TO COMPLETION, DATED NOVEMBER 20, 1995
PROSPECTUS
$500,000,000
IBP, INC.
DEBT SECURITIES
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IBP, inc. ("IBP" or the "Company") may offer from time to time its senior
unsecured debt securities (the "Debt Securities") at an aggregate initial
offering price of up to $500,000,000 (or the equivalent thereof if any of the
Debt Securities are denominated other than in U.S. dollars) on terms to be
determined at the time of offering. The series, specific designation, aggregate
principal amount, maturity, rate (or manner of rate calculation) and time of
payment of any interest, purchase price, any terms relating to mandatory or
optional redemption or repayment (including any sinking fund), any modification
of the covenants and any other specific terms in connection with the sale of the
Debt Securities in respect of which this Prospectus is being delivered are set
forth in an accompanying Prospectus Supplement. The Prospectus Supplement also
includes information concerning any listing on a stock exchange of the Debt
Securities with respect to which this Prospectus and the Prospectus Supplement
are being delivered.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The Debt Securities may be offered directly by the Company, through agents
designated from time to time, through dealers or through underwriters. See "Plan
of Distribution." Any such agents, dealers or underwriters are set forth in the
accompanying Prospectus Supplement. If an agent of IBP or a dealer or
underwriter is involved in the offering of the Debt Securities, the name of such
agent, dealer or underwriter, any applicable commissions or discounts, and net
proceeds to IBP will be set forth in the Prospectus Supplement with respect to
such Debt Securities. Any agents, dealers or underwriters participating in the
offering may be deemed "underwriters" within the meaning of the Securities Act
of 1933, as amended.
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement.
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The date of this Prospectus is
<PAGE> 3
AVAILABLE INFORMATION
IBP is subject to the informational requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy materials and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy materials and other
information concerning IBP and the Registration Statement (as defined below) can
be inspected and copied at the public reference facilities maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549,
and at the regional offices maintained by the Commission at The Northwestern
Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661, and
at Seven World Trade Center, 13th Floor, New York, New York 10048. Copies can be
obtained by mail from the Commission at prescribed rates from the Public
Reference Section of the Commission at its principal office at Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, and copies can be obtained
electronically through the Commission's Electronic Data Gathering, Analysis, and
Retrieval (EDGAR) system. In addition, reports, proxy statements and other
information concerning IBP can be inspected at the office of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York, on which IBP's common stock
is listed.
IBP has filed with the Commission a registration statement on Form S-3
(herein, together with all information incorporated by reference therein and all
amendments and exhibits thereto, referred to as the "Registration Statement")
under the Securities Act of 1933, as amended (the "Securities Act"). This
Prospectus and any applicable Prospectus Supplement do not contain all of the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission. For
further information, reference is hereby made to the Registration Statement
including the exhibits filed as a part thereof. Statements made in this
Prospectus and any applicable Prospectus Supplement as to the contents of any
documents referred to are not necessarily complete, and in each instance
reference is made to such exhibit for a more complete description and each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by IBP with the Commission (File No. 1-6085)
pursuant to the Exchange Act are incorporated in and made a part of this
Prospectus by reference thereto:
(a) Annual Report on Form 10-K for the fiscal year ended December 31,
1994;
(b) Quarterly Reports on Form 10-Q for the thirteen weeks ended April
1, 1995, the twenty-six weeks ended July 1, 1995, and the thirty-nine weeks
ended September 30, 1995; and
(c) Current Report on Form 8-K filed with the Commission on August 7,
1995.
All other documents filed by IBP pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Debt Securities made hereby shall be
deemed incorporated by reference in this Prospectus and any applicable
Prospectus Supplement and to be a part hereof from the date of filing of such
documents. Any statement contained in the documents incorporated or deemed to be
incorporated herein by reference, or contained in this Prospectus or any
applicable Prospectus Supplement, shall be deemed to be modified or superseded
for purposes of this Prospectus or any applicable Prospectus Supplement to the
extent that a statement contained herein or in any subsequently filed document
that also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus or any applicable Prospectus Supplement.
IBP will provide without charge to each person to whom this Prospectus and
any Prospectus Supplement have been delivered, upon written or oral request of
such person, a copy (without exhibits other than exhibits specifically
incorporated by reference) of any or all documents incorporated by reference
into this Prospectus or any applicable Prospectus Supplement. Requests for such
copies should be directed to Investor Relations Department, IBP, inc., Post
Office Box 515 #52A, Dakota City, Nebraska 68731; telephone number (402)
241-2559.
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THE COMPANY
IBP is the world's leading producer of fresh beef and pork, with fiscal
1994 net sales of approximately $12.1 billion. Customers include food retailers,
distributors, wholesalers, restaurant and hotel chains and other food
processors. IBP also produces fully cooked meats for the retail and food service
industries. Its allied products line includes more than 250 items, including
tanned hides for leather makers, ingredients for pharmaceuticals and raw
materials for animal feeds.
Founded in 1960 as Iowa Beef Packers, Inc., the Company began operations in
1961 with one plant in western Iowa. Today, IBP has 23 plant sites in North
America, regional sales offices throughout the United States and international
sales offices in England and Japan.
IBP is a Delaware corporation with executive offices located at IBP Avenue,
Dakota City, Nebraska 68731-0515. The telephone number of its Investor Relations
Department is (402) 241-2559. Unless the context indicates otherwise, all
references in this Prospectus to "IBP" or the "Company" include IBP, inc. and
its subsidiaries.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for IBP for each of the periods set
forth below is as follows:
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THIRTY-NINE WEEKS ENDED FISCAL YEARS ENDED
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SEPTEMBER 30, SEPTEMBER 24, DECEMBER 31, DECEMBER 25, DECEMBER 26, DECEMBER 28, DECEMBER 29,
1995 1994 1994(1) 1993 1992 1991 1990
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<S> <C> <C> <C> <C> <C> <C>
11.68x 5.85x 7.36x 3.67x 2.87x 1.03x 2.23x
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(1) Fiscal year consisted of 53 weeks.
The ratio of earnings to fixed charges has been computed by dividing
pre-tax earnings available for fixed charges (earnings before income taxes
adjusted for interest expense and one-third of operating lease/rent expense) by
fixed charges. Fixed charges include interest expense (incurred interest before
capitalized interest and interest income) and one-third of operating lease/rent
expense. The Company's management believes that one-third of operating
lease/rent expense is representative of the interest factor.
USE OF PROCEEDS
Except as otherwise provided in the applicable Prospectus Supplement, the
net proceeds to IBP from the sale of the Debt Securities offered hereby will be
added to the working capital of IBP and will be available for general corporate
purposes.
DESCRIPTION OF THE DEBT SECURITIES
The Debt Securities are to be issued under an Indenture (the "Indenture")
between the Company and The Bank of New York, as trustee (the "Trustee"). A form
of the Indenture has been filed as an exhibit to the Registration Statement. The
statements made under this heading relating to the Debt Securities and the
Indenture are summaries of the provisions thereof and do not purport to be
complete. Parenthetical references below are to the Indenture or to sections of
the Trust Indenture Act of 1939, as amended (the "TIA"), certain provisions of
which govern the terms of the Indenture, and, whenever any particular provision
of the Indenture or the TIA or any defined term used therein is referred to,
such provision or defined term is incorporated by reference as a part of the
statement in connection with which such reference is made, and the statement in
connection with which such reference is made is qualified in its entirety by
such reference. Capitalized terms used herein but not otherwise defined shall
have the meanings assigned to them in the Indenture.
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GENERAL
The Indenture does not limit the amount of Debt Securities which may be
issued thereunder and provides that Debt Securities may be issued thereunder
from time to time in one or more series up to the aggregate principal amount
which may be authorized by the Company for each series. The Debt Securities will
be unsecured and unsubordinated Debt of the Company and will rank equally and
ratably with all other unsecured and unsubordinated indebtedness of the Company.
The particular terms of each series of Debt Securities, as well as any
modifications of or additions to the general terms of the Debt Securities as
described herein that may be applicable in the case of a particular series of
Debt Securities, will be described in the Prospectus Supplement relating to such
series of Debt Securities. Accordingly, for a description of the terms of a
particular series of Debt Securities, reference must be made to both the
Prospectus Supplement relating thereto and the description of Debt Securities
set forth in this Prospectus.
Reference is made to the Prospectus Supplement relating to the particular
series of Debt Securities offered thereby for a description of the following
terms or additional provisions of the Debt Securities: (1) the title of such
Debt Securities; (2) any limit on the aggregate principal amount of such Debt
Securities; (3) the price or prices at which such Debt Securities will be
issued; (4) the date or dates, or the method by which such date or dates will be
determined or extended, on which the principal of such Debt Securities will be
payable; (5) the rate or rates per annum (which may be fixed, floating or
adjustable) at which such Debt Securities will bear interest, if any, or the
formula pursuant to which such rate or rates shall be determined; (6) the date
or dates from which interest, if any, on such Debt Securities shall accrue or
the method by which such date or dates shall be determined, the dates on which
such interest, if any, will be payable, the date on which payment of such
interest, if any, will commence, the Regular Record Dates for such Interest
Payment Dates, if any, and the Person to whom any interest on such Debt
Securities will be payable, if other than the Person in whose name such Debt
Securities are registered on any Regular Record Date; (7) the date, if any,
after which and the price or prices at which such Debt Securities may, pursuant
to any optional or mandatory redemption provisions, be redeemed at the option of
the Company or the Holder and any other terms and provisions of such optional or
mandatory redemptions; (8) the obligation, if any, of the Company to redeem,
repay or purchase such Debt Securities pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof and the period or periods within
which or the date or dates on which, the price or prices at which, the Currency
in which, and the other terms and conditions upon which, such Debt Securities
shall be redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation; (9) whether such Debt Securities are to be issuable as Registered
Securities or Bearer Securities or both, whether any of such Debt Securities
shall be issuable in whole or in part in temporary or permanent global form or
in the form of Book-Entry Securities and, if so, the circumstances under which
any such global security or global securities or Book-Entry Securities may be
exchanged for Debt Securities registered in the name of, and any transfer of
such global or Book-Entry Securities may be registered to, a Person other than
the depository for such temporary or permanent global securities or Book-Entry
Securities or its nominee; (10) if other than Dollars, the Currency in which
such Debt Securities will be denominated and in which the principal of (and
premium, if any) and any interest on such Debt Securities will be payable; (11)
whether the amount of payments of principal of (and premium, if any) or
interest, if any, on such Debt Securities may be determined with reference to an
index, formula or other method (which index, formula or method may be based on
one or more Currencies, commodities, equity indices or other indices) and the
manner in which such amounts shall be determined; (12) whether the Company or
Holder may elect payment of the principal of (and premium, if any) or interest,
if any, on such Debt Securities in one or more Currencies other than that in
which such Debt Securities are denominated or stated to be payable, the period
or periods within which, and the terms and conditions upon which, such election
may be made, and the time and manner of determining the exchange rate between
the Currency in which such Debt Securities are denominated or stated to be
payable and the Currency in which such Debt Securities are to be so payable;
(13) the place or places, if any, other than or in addition to the Borough of
Manhattan, The City of New York, where the principal of (and premium, if any)
and any interest on such Debt Securities shall be payable, any Registered
Securities of the series may be surrendered for registration of transfer, such
Debt Securities may be surrendered for exchange and notice or demands to or upon
the Company in respect of such Debt Securities and the Indenture may be served;
(14) if other than denominations of $1,000 and any integral multiple thereof,
the denominations in which any
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Registered Securities of the series shall be issuable and, if other than the
denomination of $5,000, the denomination or denominations in which any Bearer
Securities of the series shall be issuable; (15) the applicability, if at all,
to such Debt Securities of the provisions of Article XIV of the Indenture
described under "Defeasance and Covenant Defeasance" below, and any provisions
in modification of, in addition to or in lieu of any of the provisions of such
Article; (16) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than 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 such interest, the manner in which, or the Person
to whom, any interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons appertaining
thereto as they severally mature, and the extent to which, or the manner in
which, any interest payable on a temporary global security on an Interest
Payment Date will be paid if other than in the manner provided in the Indenture;
(17) whether and under what circumstances the Company will pay Additional
Amounts as contemplated by Section 10.4 of the Indenture on such Debt Securities
to any Holder who is not a United States Person (including any modification to
the definition of such term as contained in the Indenture as originally
executed) in respect of any tax, assessment or governmental charge and, if so,
whether the Company will have the option to redeem such Debt Securities rather
than pay such Additional Amounts (and the terms of any such option); (18)
provisions, if any, granting special rights to the Holders of such Debt
Securities upon the occurrence of such events as may be specified; (19) any
deletions from, modifications of or additions to the Events of Default or
covenants of the Company with respect to such Debt Securities, whether or not
such Events of Default or covenants are consistent with the Events of Default or
covenants set forth herein; (20) the date as of which any Bearer Securities of
the series and any temporary global security shall be dated if other than the
date of original issuance of the first of such Debt Securities; (21) if such
Debt Securities are to be issuable in definitive form (whether upon original
issue or upon exchange of a temporary security of such series) only upon receipt
of certain certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or conditions; (22)
the designation of the initial Exchange Rate Agent, if any; and (23) any other
terms of such Debt Securities (Section 3.1).
The Indenture does not contain any provisions that afford Holders of Debt
Securities of any series protection in the event of a highly leveraged
transaction, reorganization, restructuring, merger or similar transaction
involving the Company that may adversely affect Holders of the Debt Securities
(except to the limited extent that the covenants described below under "Certain
Restrictions" might affect the Company's ability to consummate such
transactions). Any provision that does provide such protection, if applicable to
the Debt Securities, will be described in the applicable Prospectus Supplement
relating thereto.
Some or all of the Debt Securities may be issued under the Indenture as
Original Issue Discount Securities (bearing no interest or interest at a rate
that at the time of issuance is below market rates) or as deferred interest Debt
Securities (paying interest at a later date) to be issued at prices below their
stated principal amounts. Certain federal income tax consequences and other
special considerations applicable to any such Original Issue Discount Securities
and deferred interest Debt Securities will be described in the applicable
Prospectus Supplement.
Debt Securities denominated or payable in foreign currencies may entail
significant risks. These risks include, without limitation, the possibility of
significant fluctuations in the foreign currency markets. These risks will vary
depending upon the currency or currencies involved and will be more fully
described in the applicable Prospectus Supplement.
DENOMINATIONS, REGISTRATION AND TRANSFER
Debt Securities of a series may be issuable in definitive form solely as
Registered Securities, solely as Bearer Securities or as both Registered
Securities and Bearer Securities. Registered Securities will be issuable in
denominations of $1,000 and integral multiples of $1,000 and Bearer Securities
will be issuable in the denomination of $5,000 or, in each case, in such other
denominations as may be in the terms of the Debt Securities of any particular
series. The Indenture also provides that Debt Securities of a series may be
issuable in temporary or permanent global form and may be issued as Book-Entry
Securities that will be deposited with, or on behalf of, The Depository Trust
Company or another depository named by the Company (the
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"Depository") and identified in a Prospectus Supplement with respect to such
series (Section 3.1). Unless otherwise specified in an applicable Prospectus
Supplement, Bearer Securities will have interest coupons attached (Section 2.1).
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations. If (but only if)
provided in an applicable Prospectus Supplement, Bearer Securities (with all
unmatured coupons, except as provided below, and all matured coupons in default)
of any series may be exchanged for Registered Securities of the same series of
any authorized denominations and of a like aggregate principal amount and tenor.
In such event, Bearer Securities surrendered in a permitted exchange for
Registered Securities between a Regular Record Date or a Special Record Date and
the relevant date for payment of interest shall be surrendered without the
coupon relating to such date for payment of interest, and interest will not be
payable on such date for payment of interest in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the holder of such coupon when due in accordance with the terms of the
Indenture. Unless otherwise specified in the applicable Prospectus Supplement,
Bearer Securities will not be issued in exchange for Registered Securities
(Section 3.5).
The Debt Securities may be presented for exchange as described above, and
Registered Securities may be presented for registration of transfer (duly
endorsed or accompanied by a written instrument of transfer), at the corporate
trust office of the Trustee in the Borough of Manhattan, The City of New York,
or at the office of any transfer agent designated by the Company for such
purpose with respect to any series of Debt Securities and referred to in the
applicable Prospectus Supplement. No service charge will be made for any
transfer or exchange of Debt Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith (Section 3.5). If a Prospectus Supplement refers to any
transfer agent (in addition to the Trustee) initially designated by the Company
with respect to any series of Debt Securities, the Company may at any time
rescind the designation of any such transfer agent or approve a change in the
location through which any such transfer agent acts, except that, if Debt
Securities of a series are issuable solely as Registered Securities, the Company
will be required to maintain a transfer agent in each Place of Payment for such
series and, if Debt Securities of a series may be issuable both as Registered
Securities and as Bearer Securities, the Company will be required to maintain
(in addition to the Trustee) a transfer agent in a Place of Payment for such
series located outside the United States. The Company may at any time designate
additional transfer agents with respect to any series of Debt Securities
(Section 10.2).
The Company shall not be required to (i) issue, register the transfer of or
exchange Debt Securities of any series during a period beginning at the opening
of business 15 days before any selection of Debt Securities of that series to be
redeemed and ending at the close of business on (A) if Debt Securities of the
series are issuable only as Registered Securities, the day of mailing of the
relevant notice of redemption and (B) if Debt Securities of the series are
issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Debt Securities of the series are also issuable as
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption; (ii) register the transfer of or exchange any Registered
Security, or portion thereof, called for redemption, except the unredeemed
portion of any Registered Security being redeemed in part, (iii) exchange any
Bearer Security selected for redemption, except to exchange such Bearer Security
for a Registered Security of that series and like tenor which is simultaneously
surrendered for redemption; or (iv) issue, register the transfer of or exchange
any Debt Securities which has been surrendered for repayment at the option of
the Holder, except the portion, if any, thereof not to be so repaid (Section
3.5).
CERTAIN LIMITATIONS ON ISSUANCE OF BEARER SECURITIES
In compliance with United States federal tax laws and regulations, Bearer
Securities may not be offered, sold, resold or delivered in connection with
their original issue in the United States or to United States persons (each as
defined in the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder) other than to offices located outside of the United
States of United States financial institutions that agree to comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Code and the regulations
thereunder, and any underwriters, agents and dealers participating in the
offering of Debt
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Securities must agree that they will not offer any Bearer Securities for sale or
resale in the United States or to United States persons (other than the
financial institutions described above) or deliver Bearer Securities within the
United States. In addition, any such underwriters, agents and dealers must agree
to send confirmations to each purchaser of a Bearer Security confirming that
such purchaser represents that it is not a United States person or that it is a
financial institution described above and, if such person is a dealer, that it
will send similar confirmations to purchasers from it. A Bearer Security may be
delivered in connection with its original issuance only if the person entitled
to receive such Bearer Security furnishes written certification of the
beneficial ownership of the Bearer Security as required by Treasury Regulation
Section 1.163-5(c)(2)(i)(D)(3). In the case of a Bearer Security in permanent
global form, such certification must be given in connection with notation of a
beneficial owner's interest therein in connection with the original issuance of
such Debt Security (Section 3.3).
Bearer Securities and any coupons appertaining thereto will bear a legend
substantially to the following effect: "Any United States person who holds this
obligation will be subject to limitations under the United States income tax
laws, including the limitations provided in Sections 165(j) and 1287(a) of the
Internal Revenue Code." Under Sections 165(j) and 1287(a) of the Code, Holders
that are United States persons, with certain exceptions, will not be entitled to
deduct any loss on Bearer Securities and must treat as ordinary income any gain
realized on the sale or other disposition (including the receipt of principal)
of Bearer Securities.
Other restrictions and additional tax considerations may apply to the
issuance and holding of Bearer Securities. A description of such restrictions
and federal income tax consequences will be set forth in the applicable
Prospectus Supplement.
GLOBAL AND BOOK-ENTRY DEBT SECURITIES
If Debt Securities to be sold in the United States are designated by the
Company in a Prospectus Supplement as Book-Entry Securities, a global security
representing the Book-Entry Securities will be deposited in the name of the
nominee for the Depository, representing the Debt Securities to be sold in the
United States. Upon such deposit of the Book-Entry Securities, the Depository
shall credit an account maintained or designated by an institution to be named
by the Company or any purchaser of the Debt Securities represented by the
Book-Entry Securities with an aggregate amount of Debt Securities equal to the
total number of Debt Securities that have been so purchased. The specific terms
of any depository arrangement with respect to any portion of a series of Debt
Securities to be represented by one or more global securities will be described
in the applicable Prospectus Supplement. Beneficial interests in such Debt
Securities will only be evidenced by, and transfers thereof will only be
effected through, records maintained by the Depository and the institutions that
are Depository participants.
If so specified in an applicable Prospectus Supplement, the portion of the
Debt Securities of a series which are issuable as Bearer Securities will
initially be represented by one or more temporary or permanent global Debt
Securities, without interest coupons, to be deposited with a common depository
in London for the Euroclear System ("Euroclear") and CEDEL S.A. ("CEDEL") for
credit to the designated accounts. Unless otherwise indicated by an applicable
Prospectus Supplement, on or after 40 days following its issuance, each such
temporary global Debt Security will be exchangeable for definitive Bearer
Securities, definitive Registered Securities or all or a portion of a permanent
global Debt Security, or any combination thereof, as specified in an applicable
Prospectus Supplement, only upon written certification in the form and to the
effect described under "Denominations, Registration and Transfer." No Bearer
Security (including a Debt Security in permanent global form) delivered in
exchange for a portion of a temporary or permanent global Debt Security shall be
mailed or otherwise delivered to any location in the United States in connection
with such exchange (Sections 3.4 and 3.5).
A Person having a beneficial interest in a permanent global Debt Security
will, except with respect to payment of principal of, premium, if any, and
interest on such permanent global Debt Security, be treated as a Holder of such
principal amount of Outstanding Debt Securities represented by such permanent
global Debt Security as shall be specified in a written statement of the Holder
of such permanent global Debt Security or,
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in the case of a permanent global Debt Security in bearer form, of the operator
of Euroclear or CEDEL which is provided to the Trustee by such Person (Section
2.3).
CERTAIN RESTRICTIONS
RESTRICTIONS ON LIENS
The Indenture provides that neither the Company nor any Significant
Subsidiary of the Company shall incur, create, issue, assume, guarantee or
otherwise become liable for any Debt for money borrowed that is secured by a
Lien on any asset now owned or hereafter acquired by it unless the Company makes
or causes to be made effective provision whereby the Securities issued under the
Indenture will be secured by such Lien equally and ratably with (or prior to)
all other Debt thereby secured so long as any such Debt shall be secured. The
foregoing restriction does not apply to the following:
(i) Liens existing as of the date of the Indenture;
(ii) Liens created by Subsidiaries of the Company to secure Debt of
such Subsidiaries to the Company or to one or more other Subsidiaries of
the Company;
(iii) Liens affecting property of a Person existing at the time it
becomes a Subsidiary of the Company or at the time it merges into or
consolidates with the Company or a Subsidiary of the Company or at the time
of a sale, lease or other disposition of all or substantially all of the
properties of such Person to the Company or its Subsidiaries;
(iv) Liens on property existing at the time of the acquisition thereof
or incurred to secure payment of all or a part of the purchase price
thereof, including the expenses incurred in connection therewith, or to
secure Debt incurred prior to, at the time of, or within one year after the
acquisition thereof for the purpose of financing all or a part of the
purchase price thereof, including the expenses incurred in connection
therewith;
(v) Liens on any property to secure all or part of the cost of
improvements or construction thereon or Debt incurred to provide funds for
such purpose in a principal amount not exceeding the cost of such
improvements or construction, including the expenses incurred in connection
therewith;
(vi) Liens on shares of stock, Debt or other securities of a Person
that is not a Subsidiary;
(vii) Liens relating to accounts receivable of the Company or any of
its Subsidiaries which have been sold, assigned or otherwise transferred to
another Person in a transaction classified as a sale of accounts receivable
in accordance with generally accepted accounting principles (to the extent
the sale by the Company or the applicable Subsidiary is deemed to give rise
to a Lien in favor of the purchaser thereof in such accounts receivable or
the proceeds thereof);
(viii) Liens created pursuant to applications or reimbursement
agreements pertaining to commercial letters of credit which encumber only
the goods, or documents of title covering the goods that are sold or
shipped in the transaction for which such letters of credit were issued;
(ix) Liens incurred by the Company after the date of this Agreement in
connection with industrial revenue bond financing for facilities (including
pollution control equipment) to be used by the Company or any Subsidiary;
(x) Liens in favor of governmental bodies to secure progress, advance
or other payments;
(xi) other Liens arising in connection with Debt of the Company and
its Subsidiaries in an aggregate principal amount for the Company and its
Subsidiaries not exceeding 10% of the Consolidated Net Assets of the
Company at the time such Lien is issued, created or assumed; and
(xii) any extension, renewal or replacement (or successive extensions,
renewals or replacements) of any Lien referred to in the foregoing clauses
(i) through (xi) inclusive, or of any Debt secured thereby, provided that
the principal amount of Debt secured thereby shall not exceed the greater
of (A) the principal amount of Debt so secured at the time of such
extension, renewal or replacement and (B) the
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principal amount of Debt secured at the time the Lien was issued, created,
assumed or otherwise permitted, plus in either of (A) or (B) the expenses
of the Company and its Subsidiaries (including any premium) incurred in
connection with any such extension, renewal or replacement, and provided
further that such extension, renewal or replacement Lien shall be limited
to all or part of substantially the same property that secured the Lien
extended, renewed or replaced (plus improvements on such property) (Section
10.6).
RESTRICTIONS UPON SALE AND LEASEBACK TRANSACTIONS
The Company is not permitted, and may not permit a Significant Subsidiary,
to enter into any arrangement on or after the date of the Indenture, or such
other date as may be specified in any Prospectus Supplement for an applicable
series of Debt Securities issued pursuant to the Indenture, with any Person
(other than the Company or another Subsidiary) providing for the leasing by the
Company or any such Significant Subsidiary of any Principal Property (except a
lease for a temporary period, including renewals, of not more than 24 months by
the end of which it is intended that the use of such property by the lessee will
be discontinued) except (i) where the Company or such Subsidiary would be
entitled to incur Debt secured by a Lien on the property to be leased in an
amount equal to the Attributable Debt with respect to such Sale and Leaseback
Transaction without equally and ratably securing the Debt Securities, (ii) where
the Sale and Leaseback Transaction is entered into in respect of property
acquired by the Company or a Subsidiary within 24 months of such acquisition,
(iii) where such Sale and Leaseback Transaction is entered into by the Company
or a Subsidiary in respect of property within 24 months of the Company's or a
Subsidiary's acquisition of, or merger with, the Person owning such property, or
(iv) where the Company within 120 days of entering into the Sale and Leaseback
Transaction applies to the retirement of Debt Securities of any series an amount
equal to the greater of (a) the net proceeds of the sale of the property leased
pursuant to such Transaction or (b) the fair market value of the property so
leased (Section 10.7).
RESTRICTIONS UPON MERGER AND SALE OF ASSETS
The Indenture provides that the Company may not consolidate with or merge
into any other Person, or sell, convey, transfer, lease, or otherwise dispose
of, or permit one or more of its Subsidiaries to sell, convey, transfer, lease,
or otherwise dispose of, all or substantially all of the property and assets of
the Company, on a consolidated basis, to any Person unless, among other things,
(i) either the Company is the continuing corporation or such Person is a
corporation, partnership or trust organized and validly existing under the laws
of the United States of America, any state thereof or the District of Columbia,
and assumes by supplemental indenture all the obligations of the Company under
the Indenture and the Debt Securities, and (ii) immediately after the
transaction no Default or Event of Default shall exist (Section 8.1).
EVENTS OF DEFAULT
The Indenture defines an Event of Default with respect to the Debt
Securities of any series as being any one of the following events: (i) default
for 30 days in any payment of interest upon or any Additional Amounts payable in
respect of any Debt Security of that series when due; (ii) default in any
payment of principal of (or premium, if any, upon) any Debt Security of that
series when due; (iii) default in the deposit of any sinking fund payment, when
and as due by the terms of any Debt Security of that series; (iv) default for 60
days after appropriate notice in the performance of any other covenant in the
Indenture with respect to any Debt Security of that series; (v) certain events
in bankruptcy, insolvency, reorganization or other similar laws; and (vi) any
other Event of Default provided with respect to Debt Securities of that series
(Section 5.1).
In case an Event of Default shall occur and be continuing with respect to
the Debt Securities of any series, the Trustee or the Holders of not less than
25% in aggregate principal amount of the Debt Securities then Outstanding of
that series may declare the principal of the Debt Securities of such series (or,
if the Debt Securities of that series were issued as discounted Debt Securities,
such portion of the principal as may be specified in the terms of that series)
and the accrued interest thereon, if any, to be due and payable (Section 10.8).
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The Indenture requires the Company to file annually with the Trustee an
Officers' Certificate as to the absence of certain defaults under the terms of
the Indenture (Section 10.8). The Indenture provides that the Trustee may
withhold notice to the Holders of any default (except in payment of principal or
premium, if any, or interest) if it considers it in the interest of the Holders
to do so (Section 6.1).
Subject to the provisions of the Indenture relating to the duties of the
Trustee, in case an Event of Default shall occur and be continuing, the
Indenture provides that the Trustee shall be under no obligation to exercise any
of its rights or powers under the Indenture at the request, order or direction
of Holders unless such Holders shall have offered to the Trustee reasonable
indemnity and security against the costs, expenses and liabilities which might
be incurred by it in compliance with such request (Section 5.7). Subject to such
provisions for indemnification and certain other rights of the Trustee, the
Indenture provides that the Holders of a majority in principal amount of the
Debt Securities of any series then 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
(Section 5.12).
The Holders of at least a majority in aggregate principal amount of the
Outstanding Debt Securities of each series may, on behalf of the Holders of all
the Debt Securities of that series, waive, insofar as that series is concerned,
compliance by the Company with certain restrictive portions of the Indenture
and, if applicable, such Debt Securities, unless a greater percentage of such
aggregate principal amount is specified in the applicable Prospectus Supplement.
The Holders of not less than a majority in principal amount of the Outstanding
Debt Securities of any series may on behalf of the Holders of all the Debt
Securities of such series and any related coupons waive any past default under
the Indenture with respect to such series and its consequences, except a default
(i) in the payment of the principal of (or premium, if any) or interest on or
Additional Amounts payable in respect of any Debt Security of such series, or
(ii) in respect of a covenant or provision that cannot be modified or amended
without the consent of the Holder of each Outstanding Debt Security of such
series affected thereby (Section 5.13).
MODIFICATION OF THE INDENTURE
Modification and amendment of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of not less than a majority in
aggregate principal amount of all Outstanding Debt Securities of any series that
are affected by such modification or amendment unless a greater percentage of
such aggregate principal amount is specified in the Prospectus Supplement;
provided, however, that no such modification or amendment may, without the
consent of the Holder of each Outstanding Debt Security of such series, among
other things: (i) change the Stated Maturity of the principal of, or any
installment of interest on, any Debt Security of such series; (ii) reduce the
principal amount of, the rate of interest on, or any premium payable upon the
redemption of, any Debt Security of such series; (iii) change any obligation of
the Company to pay Additional Amounts in respect of any Debt Security of such
series; (iv) reduce the amount of principal of an Original Issue Discount
Security of such series that would be due and payable upon a declaration of
acceleration of the Maturity thereof; (v) change the Place of Payment or
Currency of Payment of principal of, or any premium or interest on, any Debt
Security of such series; (vi) impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof or any
Redemption Date therefor; (vii) reduce the above-stated percentage of Holders of
Outstanding Debt Securities of such series necessary to modify or amend the
Indenture or to consent to any waiver thereunder or reduce the requirements for
voting or quorum described below; or (viii) modify the foregoing requirements or
reduce the percentage of Outstanding Debt Securities of such series necessary to
waive any past default (Section 9.2).
Modification and amendment of the Indenture may be made by the Company and
the Trustee without the consent of any Holder, for any of the following
purposes: (i) to evidence the succession of another Person to the Company as
obligor under the Indenture; (ii) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Debt Securities; (iii) to add
Events of Default for the benefit of the Holders of all or any series of Debt
Securities; (iv) to add or change any provisions of the Indenture to facilitate
the issuance of Bearer Securities; (v) to change or eliminate any provisions of
the Indenture, provided that any such change or elimination shall become
effective only when there are no Outstanding Debt Securities of any
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series created prior thereto which are entitled to the benefit of such
provision; (vi) to establish the form or terms of Debt Securities of any series
and any related coupons; (vii) to secure the Debt Securities; (viii) to provide
for the acceptance of appointment by a successor Trustee; (ix) to cure any
ambiguity, defect or inconsistency in the Indenture, provided such action does
not adversely affect the interests of Holders of Debt Securities of any series
in any material respect; or (x) to supplement any of the provisions of the
Indenture to the extent necessary to permit or facilitate defeasance and
discharge of any series of Debt Securities, provided such action shall not
adversely affect the interests of the Holders of any Debt Securities in any
material respect (Section 9.1).
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent, waiver or other
action thereunder or are present at a meeting of Holders of Debt Securities for
quorum purposes, (i) the principal amount of an Original Issue Discount Security
that shall be deemed to be Outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
acceleration of the Maturity thereof, and (ii) the principal amount of a Debt
Security denominated in a foreign currency or currency units shall be the Dollar
Equivalent of the Currency Unit, determined on the date of original issuance of
such Debt Security or, in the case of an Original Issue Discount Security, the
Dollar Equivalent of the Currency Unit, determined on the date of original
issuance of such Debt Security, of the amount determined as provided in (i)
above (Section 3.12).
The Indenture contains provisions for convening meetings of the Holders of
Debt Securities of any series. A meeting may be called at any time by the
Trustee, and also, upon request, by the Company or the Holders of at least 10%
in principal amount of the Outstanding Debt Securities of any such series, in
any such case upon notice given as provided in the Indenture. Except for any
consent that must be given by the Holder of each Debt Security affected thereby,
as described above, any resolution presented at a meeting or adjourned meeting
at which a quorum is present may be adopted by the affirmative vote of the
Holders of a majority in principal amount of the Outstanding Debt Securities of
that series; provided, however, that any resolution with respect to any request,
demand, authorization, direction, notice, consent, waiver or other action that
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of Outstanding Debt Securities of a
series may be adopted at a meeting or adjourned meeting duly reconvened at which
a quorum is present by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Debt Securities of that
series. Any resolution passed or decision taken at any meeting of Holders of
Debt Securities of any series duly held in accordance with the Indenture will be
binding on all Holders of Debt Securities of that series and the related
coupons. The quorum at any meeting called to adopt a resolution, and at any
reconvened meeting, will be the Persons entitled to vote a majority in principal
amount of the Outstanding Debt Securities of a series; provided, however, that
if any action is to be taken at such meeting with respect to a consent or waiver
that may be given by the Holders of a specified percentage in principal amount
of the Outstanding Debt Securities of a series, the Persons entitled to vote
such specified percentage in principal amount of the Outstanding Debt Securities
of such series will constitute a quorum (Article XV).
DEFEASANCE AND DISCHARGE
The Indenture provides that, if so specified with respect to the Debt
Securities of any series, the Company will be discharged from any and all
obligations in respect of the Debt Securities of such series upon the deposit
with the Trustee, in trust, of money and/or U.S. Government Obligations which
through the payment of interest and principal in respect thereof in accordance
with the terms will provide money in an amount sufficient to pay the principal
of (and premium, if any), each installment of interest on, and any sinking fund
payments on, the Debt Securities of such series on the Stated Maturity of such
payments in accordance with the terms of the Indenture and the Debt Securities
of such series. Such a trust may only be established if, among other things, the
Company has delivered to the Trustee an Opinion of Counsel to the effect that
(i) the Company has received from, or there has been published by, the Internal
Revenue Service a rule, or (ii) since the date of the Indenture there has been a
change in applicable federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the Holders of
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Debt Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit, defeasance and
discharge, and will be subject to federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred. In the event of any such
defeasance and discharge of Debt Securities of such series, Holders of Debt
Securities of such series would be able to look only to such trust fund for
payment of principal of and any premium and any interest on their Debt
Securities until Maturity (Section 14.2).
DEFEASANCE OF CERTAIN COVENANTS
The Indenture provides covenants that, if so specified with respect to the
Debt Securities of any series, the Company may omit to comply with the
restrictive covenants described under "Certain Restrictions" above and any other
covenants applicable to such Debt Securities which are subject to covenant
defeasance and any such omission shall not be an Event of Default with respect
to the Debt Securities of such series, upon the deposit with the Trustee, in
trust, of money and/or U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms will
provide money in an amount sufficient to pay the principal of (and premium, if
any), each installment of interest on, and any sinking fund payments on, the
Debt Securities of such series on the Stated Maturity of such payments in
accordance with the terms of the Indenture and the Debt Securities of such
series. The obligations of the Company under the Indenture and the Debt
Securities of such series other than with respect to such covenant shall remain
in full force and effect. Such a trust may be established only if, among other
things, the Company has delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the Debt Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such deposit
and defeasance of certain obligations and will be subject to federal income tax
on the same amounts and in the same manner and at the same times as would have
been the case if such deposit and defeasance had not occurred (Section 14.3).
In the event the Company exercises its option to omit compliance with the
covenants described under "Certain Restrictions" above with respect to the Debt
Securities of any series as described above and the Debt Securities of such
series are declared due and payable because of the occurrence of any Event of
Default, then the amount of money and U.S. Government Obligations on deposit
with the Trustee will be sufficient to pay amounts due on the Debt Securities of
such series at the time of their Stated Maturity but may not be sufficient to
pay amounts due on the Debt Securities of such series at the time of the
acceleration resulting from such Default. The Company shall in any event remain
liable for such payments as provided in the Indenture.
Unless otherwise provided in the Prospectus Supplement, if, after the
Company has deposited funds and/or U.S. Government Obligations to effect
defeasance and discharge or covenant defeasance with respect to Debt Securities
of any series, (a) the Holder of a Debt Security of such series is entitled to,
and does, elect pursuant to the terms of such Debt Security to receive payment
in a Currency other than that in which such deposit has been made in respect of
such Debt Security, or (b) the Currency in which such deposit has been made in
respect of any Debt Security of such series ceases to be used by its government
of issuance, the Debt represented by such Debt Security shall be deemed to have
been, and will be, fully discharged and satisfied through the payment of the
principal of (and premium, if any) and interest, if any, on such Debt Security
as they become due out of the proceeds yielded by converting the amount so
deposited in respect of such Debt Security into the Currency in which such Debt
Security becomes payable as a result of such election or such cessation of usage
based on the applicable Market Exchange Rate (Section 14.5). Unless otherwise
provided in the Prospectus Supplement, all payments of principal of (and
premium, if any) and interest, if any, and Additional Amounts, if any, on any
Debt Security that is payable in a Foreign Currency that ceases to be used by
its government of issuance shall be made in Dollars (Section 3.12).
The Prospectus Supplement may further describe the provisions, if any,
permitting such defeasance or covenant defeasance, including any modifications
to the provisions described above, with respect to the Debt Securities of or
within a particular series and any related coupons.
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MEDIUM-TERM NOTES
The Company may offer from time to time medium-term notes (the "Medium-Term
Notes") as a series of Debt Securities under the Indenture. The particular terms
and provisions of the Medium-Term Notes will be described in the Prospectus
Supplement relating to such Medium-Term Notes.
THE TRUSTEE
The Company from time to time maintains bank accounts and has other
customary banking relationships with and obtains credit facilities and lines of
credit from the Trustee in the ordinary course of business. The Trustee may also
serve as trustee under other indentures covering other debt securities of the
Company.
PAYMENT AND PAYING AGENTS
Unless otherwise provided in an applicable Prospectus Supplement,
principal, premium, if any, and interest, if any, and Additional Amounts, if
any, on Bearer Securities will be payable, subject to any applicable laws and
regulations, at the offices of such Paying Agents outside the United States as
the Company may designate from time to time (Section 10.2). Unless otherwise
provided in the Prospectus Supplement, payment of interest and certain
Additional Amounts on Bearer Securities on any Interest Payment Date will be
made only against presentation and surrender of the coupon relating to such
Interest Payment Date (Section 10.1). Unless otherwise provided in the
Prospectus Supplement, no payment with respect to any Bearer Security will be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States. Notwithstanding the
foregoing, payments of principal, premium, if any, and interest, if any, and
Additional Amounts, if any, in respect of Bearer Securities payable in Dollars
will be made at the office of the Company's Paying Agent in the Borough of
Manhattan, The City of New York, if (but only if) payment of the full amount
thereof in Dollars at all offices or agencies outside the United States is
illegal or effectively precluded by exchange controls or other similar
restrictions (Section 10.2).
Unless otherwise provided in an applicable Prospectus Supplement,
principal, premium, if any, and interest, if any, and Additional Amounts, if
any, on Registered Securities will be payable at the office of such Paying Agent
or Paying Agents as the Company may designate from time to time, except that, at
the option of the Company, interest (including Additional Amounts, if any) may
be paid (i) by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or (ii) by transfer to an
account maintained by the payee located inside the United States. Unless
otherwise provided in the Prospectus Supplement, payment of any installment of
interest on Registered Securities will be made to the Person in whose name such
Registered Security is registered at the close of business on the Regular Record
Date for such interest (Section 3.7).
Any Paying Agents outside the United States and any other Paying Agents in
the United States initially designated by the Company for the Debt Securities
will be named in the Prospectus Supplement. The Company may at any time
designate additional Paying Agents or rescind the designation of any Paying
Agent or approve a change in the office through which any Paying Agent acts,
except that, if Debt Securities of a series are issuable only as Registered
Securities, the Company will be required to maintain a Paying Agent in each
Place of Payment for such series and, if Debt Securities of a series are also
issuable as Bearer Securities, the Company will be required to maintain (i) a
Paying Agent in the Borough of Manhattan, The City of New York, for payments
with respect to any Registered Securities of the series (and for payments with
respect to Bearer Securities of the series in the circumstances described above,
but not otherwise) and (ii) a Paying Agent in a Place of Payment located outside
the United States where Debt Securities of such series and any related coupons
may be presented and surrendered for payment; provided that if the Debt
Securities of such series are listed upon application by the Company on any
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent in any other required city
located outside the United States, as the case may be, for the Debt Securities
of such series (Section 10.2).
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Payments of principal of, premium, if any, and interest on Book-Entry
Securities registered in the name of any Depository or its nominee will be made
to the Depository or its nominee, as the case may be, as the registered owner of
the global security representing such Book-Entry Securities. The Company expects
that the Depository, upon receipt of any payment of principal, premium or
interest, will credit immediately participants' accounts with payments in
amounts proportionate to their respective beneficial interests as shown on the
records of such Depository or its nominee. None of the Company, the Trustee, any
Paying Agent or the Securities Registrar for such Debt Securities will have any
responsibility or liability for any aspects of the records relating to, or
payments made on account of, such beneficial ownership interests in the
Book-Entry Securities or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
CERTAIN DEFINITIONS
"Consolidated Net Assets" means the total assets of the Company and its
consolidated Subsidiaries as shown on the consolidated balance sheet of the
Company for the most recently completed accounting period for which financial
statements are publicly available, after deducting the amount of all current
liabilities (excluding any constituting Funded Debt by reason of their being
renewable or extendible).
"Funded Debt" means indebtedness for money borrowed 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 for
money borrowed.
"Holder," when used with respect to any Security, means, in the case of a
Registered Security, the Person in whose name the Security is registered in the
Security Register and, in the case of a Bearer Security, the bearer thereof and,
when used with respect to any coupon, means the bearer thereof.
"Lien" means any pledge, mortgage, lien, charge, encumbrance or security
interest.
"Original Issue Discount Security" means any Debt Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Principal Property" means any facility (together with the land on which it
is erected, any future additions or improvements thereto, and all machinery and
equipment included therein) used by the Company or a Subsidiary primarily for
producing, processing, packaging, storing, or distributing its products, raw
materials, inventories or other materials and supplies, located in the United
States or Canada, owned or leased by the Company or a Subsidiary, and having an
acquisition cost plus capitalized improvements in excess of 2% of Consolidated
Net Assets as of the date of such determination, but shall not include any such
property financed through the issuance of tax-exempt governmental obligations,
or any such property or portion thereof that has been determined by Board
Resolution not to be of material importance to the respective business conducted
by the Company or a Subsidiary, effective as of the date such Board Resolution
is adopted.
"Significant Subsidiary" means, at any time, any Subsidiary that would be a
"Significant Subsidiary" at such time, as such term is defined in Regulation S-X
promulgated by the Commission, as in effect as of the date of the Indenture.
"Subsidiary" means any corporation, partnership, limited liability company,
joint venture, trust, association or unincorporated organization more than 50%
of the outstanding voting interest of which is owned, directly or indirectly, by
the Company or by one or more other Subsidiaries, or by the Company and one or
more other Subsidiaries.
14
<PAGE> 16
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities to or through underwriters, and
also may sell the Debt Securities directly to other purchasers or through
agents, and any such sales may be made on a continuing basis. The Prospectus
Supplement with respect to the Debt Securities being offered thereby sets forth
the terms of the offering of such Debt Securities, including the name or names
of any underwriters or agents, the purchase price of such Debt Securities and
the proceeds to the Company from such sale, any underwriting discounts and other
items constituting underwriters' compensation, any initial public offering
price, any discounts or concessions allowed or reallowed or paid to dealers and
any securities exchanges on which such Debt Securities may be listed.
The distribution of the Debt Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed, or
at market prices prevailing at the time of sale, at prices relating to such
prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities, underwriters may receive
compensation from the Company or from purchasers of Debt Securities for whom
they may act as agents in the form of discounts, concessions or commissions.
Underwriters, dealers and agents that participate in the distribution of Debt
Securities may be deemed to be underwriters and any discounts or commissions
received by them and any profit on the resale of Debt Securities by them may be
deemed to be underwriting discounts and commissions under the Securities Act.
Any such underwriter or agent will be identified, and any such compensation will
be described, in a Prospectus Supplement.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Debt Securities may be
entitled to indemnification by the Company against certain civil liabilities,
including liabilities under the Securities Act.
If so indicated in the Prospectus Supplement, the Company will authorize
the underwriters to solicit offers by certain institutions to purchase Debt
Securities from the Company at the public offering price set forth in the
Prospectus Supplement pursuant to Delayed Delivery Contracts providing for
payment and delivery on the date stated in the Prospectus Supplement. Each such
contract will be for an amount not less than, and unless the Company otherwise
agrees, the aggregate principal amount of Debt Securities sold pursuant to such
contracts shall not be more than, the respective amounts stated in the
Prospectus Supplement. Institutions with which such contracts, when authorized,
may be made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions, and other
institutions, but shall in all cases be subject to the approval of the Company.
Delayed Delivery Contracts will not be subject to any conditions except that the
purchase by an institution of the Debt Securities covered thereby shall not at
the time of delivery be prohibited under the laws of any jurisdiction in the
United States to which such institution is subject.
VALIDITY OF THE DEBT SECURITIES
The validity of the Debt Securities will be passed upon for the Company by
Paul, Weiss, Rifkind, Wharton & Garrison, New York, New York and certain matters
will be passed upon for any underwriters by Skadden, Arps, Slate, Meagher &
Flom, New York, New York. Skadden, Arps, Slate, Meagher & Flom from time to time
provides legal services to the Company.
EXPERTS
The financial statements and schedules included in IBP's Annual Report on
Form 10-K for the fiscal year ended December 31, 1994, which are incorporated by
reference herein and in the Registration Statement, have been audited by Price
Waterhouse LLP, independent public accountants, as indicated in their report
with respect thereto, which is incorporated by reference herein. Such financial
statements and schedules are incorporated by reference herein in reliance upon
the report of Price Waterhouse LLP, given upon its authority as experts in
accounting and auditing.
15
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with the issuance and distribution of
the securities being registered other than underwriting discounts and
commissions, are set forth in the following table.
<TABLE>
<S> <C>
Securities and Exchange Commission fee.................................... $172,414
Printing and engraving expenses...........................................
Accountants' fees and expenses............................................
Legal fees and expenses...................................................
Blue Sky fees and expenses................................................
Trustee fees and expenses.................................................
Rating Agency fees........................................................
Miscellaneous.............................................................
--------
Total........................................................... $
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware, as
amended (the "GCL"), empowers a corporation, subject to certain limitations, to
indemnify its directors and officers against actual and reasonable expenses of
defending litigation against them in their capacities as directors and officers.
As permitted by this section, Article VI of the Bylaws of IBP provides that IBP
shall indemnify any person (a) who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in right of IBP) by reason of the fact that he is or was a director or
officer of IBP or is or was serving at the request of IBP as a director or
officer of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of IBP,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful; (b) who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of IBP to procure a judgment in its favor by reason of the fact
that he is or was a director or officer of IBP, or is or was serving at the
request of IBP as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of IBP, except that no indemnification shall be made in any such
case in respect of any claim, issue or matter as to which he shall have been
adjudged to be liable for negligence or misconduct in the performance of his
duties to IBP unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, he is fairly and reasonably entitled to indemnity
for such expenses which the Court of Chancery of Delaware or such other court
shall deem proper.
The Bylaws provide that the foregoing indemnification shall not be deemed
exclusive of any other rights to which a person seeking indemnification may be
entitled under any law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to actions in his official capacity and as to
actions in any other capacity while holding office, and shall continue as to a
person who has ceased to be a director or officer, and shall inure to the
benefit of the heirs, executors and administrators of such person.
Under Article VI of the Bylaws, IBP is authorized to purchase and maintain
insurance on behalf of any person who is or was a director or officer of IBP or
is or was serving at the request of IBP as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any
II-1
<PAGE> 18
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not IBP would have the power to
indemnify him against liability under the provisions of Article VI of the
Bylaws.
ITEM 16. EXHIBITS
The following Exhibits are filed as part of the Registration Statement:
<TABLE>
<S> <C>
Exhibit 1 -- Form of Underwriting Agreement for Debt Securities*
Exhibit 4 -- Form of Indenture between IBP and The Bank of New York, as
Trustee, relating to the Debt Securities
Exhibit 5 -- Opinion of Paul, Weiss, Rifkind, Wharton & Garrison as to the
legality of the Debt Securities*
Exhibit 12 -- Statement re: Computation of Ratio of Earnings to Fixed Charges
Exhibit 23(a) -- Consent of Price Waterhouse LLP
Exhibit 23(b) -- Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in
their opinion filed as Exhibit 5)*
Exhibit 24 -- Power of Attorney**
Exhibit 25 -- Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of The Bank of New York, as Trustee, for the
Debt Securities
</TABLE>
- ---------------
* To be filed by amendment.
** Included in the signature pages hereto.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the Registration Statement is on Form S-3, and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act, that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities
II-2
<PAGE> 19
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) The undersigned registrant hereby undertakes if securities are to be
offered pursuant to competitive bidding (1) to use its best efforts to
distribute prior to the opening of bids, to prospective bidders, underwriters
and dealers, a reasonable number of copies of a prospectus which at that time
meets the requirements of Section 10(a) of the Securities Act, and relating to
the securities offered at competitive bidding, as contained in the Registration
Statement, together with any supplements thereto, and (2) to file an amendment
to the Registration Statement reflecting the results of bidding, the terms of
the reoffering and related matters to the extent required by the applicable
form, not later than the first use, authorized by the issuer after the opening
of bids, of a prospectus relating to the securities offered at competitive
bidding, unless no further public offering of such securities by the issuer and
no reoffering of such securities by purchasers is proposed to be made.
(d) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(e) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 20
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL
OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN DAKOTA CITY, STATE OF NEBRASKA, ON NOVEMBER 20, 1995.
IBP, inc.
By: /s/ ROBERT L. PETERSON
------------------------------------
Robert L. Peterson
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Robert
L. Peterson and Lonnie O. Grigsby, and each of them, such person's true and
lawful attorneys-in-fact and agents, with full powers of substitution and
resubstitution, for such person and in such person's name, place and stead, in
any and all capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement and to sign any and all additional
registration statements relating to the same offering of securities as this
Registration Statement that are filed pursuant to Rule 462(b) of the Securities
Act of 1933, as amended, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON NOVEMBER 20, 1995.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ----------------------------------------------- --------------------------------------------
<S> <C>
/s/ ROBERT L. PETERSON Chairman of the Board, President and Chief
- ----------------------------------------------- Executive Officer (principal executive
Robert L. Peterson officer)
</TABLE>
<PAGE> 21
<TABLE>
<S> <C>
/s/ LARRY SHIPLEY Executive Vice President -- Corporate
- ----------------------------------------------- Development (principal financial officer)
Larry Shipley
/s/ CRAIG J. HART Vice President and Controller (principal
- ----------------------------------------------- accounting officer)
Craig J. Hart
/s/ RICHARD L. BOND Director
- -----------------------------------------------
Richard L. Bond
Director
- -----------------------------------------------
John S. Chalsty
Director
- -----------------------------------------------
Alec P. Courtelis
/s/ WENDY L. GRAMM Director
- -----------------------------------------------
Wendy L. Gramm
/s/ DAVID C. LAYHEE Director
- -----------------------------------------------
David C. Layhee
/s/ EUGENE D. LEMAN Director
- -----------------------------------------------
Eugene D. Leman
/s/ JOANN R. SMITH Director
- -----------------------------------------------
JoAnn R. Smith
/s/ DALE C. TINSTMAN Director
- -----------------------------------------------
Dale C. Tinstman
</TABLE>
<PAGE> 22
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIAL PAGE
EXHIBITS NUMBERS
- -------------- ---------------
<S> <C> <C>
Exhibit 1 Form of Underwriting Agreement for Debt Securities*.......
Exhibit 4 Form of Indenture between IBP and The Bank of New York, as
Trustee, relating to the Debt Securities..................
Exhibit 5 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison as to
the legality of the Debt Securities*......................
Exhibit 12 Statement re: Computation of Ratio of Earnings to Fixed
Charges...................................................
Exhibit 23(a) Consent of Price Waterhouse LLP...........................
Exhibit 23(b) Consent of Paul, Weiss, Rifkind, Wharton & Garrison
(included in their opinion filed as Exhibit 5)*...........
Exhibit 24 Power of Attorney**.......................................
Exhibit 25 Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939, as amended, of The Bank of New
York, as Trustee, for the Debt Securities.................
</TABLE>
- ---------------
* To be filed by amendment.
** Included in the signature pages to the Registration Statement.
<PAGE> 1
IBP, INC.
TO
THE BANK OF NEW YORK,
Trustee
____________
Indenture
Dated as of ____________ ___, 1996
____________
<PAGE> 2
TABLE OF CONTENTS(1)
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 1.3 Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 1.4 Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 1.5 Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 1.6 Notice to Holders of Securities; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 1.7 Language of Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 1.8 Effect of Headings and Table of
Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 1.9 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 1.10 Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 1.11 Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 1.12 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 1.13 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 1.14 Immunity of Incorporators, Shareholders,
Officers, Directors and Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.2 Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.3 Securities Issuable in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.4 Form of Legend for Book-Entry
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
</TABLE>
____________________
1 NOTE: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.2 Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 3.3 Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 3.4 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.5 Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities and Coupons . . . . . . . . . . . . . . . . 47
SECTION 3.7 Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 3.8 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 3.9 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 3.10 Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 3.11 Electronic Security Issuance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 3.12 Currency and Manner of Payments in
Respect of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 3.13 Appointment and Resignation of
Successor Exchange Rate Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 3.14 Optional Extension of Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 3.15 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 4.2 Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 5.4 Trustee May File Proofs of Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 5.5 Trustee May Enforce Claims Without
Possession of Securities or Coupons . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 5.6 Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 5.7 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 5.8 Unconditional Right of Holders to
Receive Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 5.9 Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 5.10 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 5.11 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 5.12 Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 5.13 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 5.14 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 5.15 Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 6.2 Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 6.3 Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 6.4 May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 6.5 Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 6.6 Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 6.7 Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 6.8 Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 6.9 Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 6.10 Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 6.11 Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 6.12 Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 6.13 Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Disclosure of Names and Addresses of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 7.2 Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 7.3 Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
</TABLE>
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ARTICLE VIII
CONSOLIDATION, MERGER
SECTION 8.1 Company May Consolidate, Etc. Only on
Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 8.2 Successor Person Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 9.2 Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 9.3 Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
SECTION 9.4 Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
SECTION 9.5 Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
SECTION 9.6 Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . 93
SECTION 9.7 Notice of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
SECTION 10.2 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
SECTION 10.3 Money for Securities Payments to Be Held
in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
SECTION 10.4 Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
SECTION 10.5 Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
SECTION 10.6 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
SECTION 10.7 Limitations on Sales and Leaseback Transactions . . . . . . . . . . . . . . . . . . . . . . 102
SECTION 10.8 Statement by Officers as to Default; Notice of Default . . . . . . . . . . . . . . . . . . . . 103
SECTION 10.9 Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
SECTION 10.10 Calculation of Original Issue Discount . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
</TABLE>
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ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
SECTION 11.2 Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
SECTION 11.3 Selection by Trustee of Securities to
Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
SECTION 11.4 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
SECTION 11.5 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
SECTION 11.6 Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
SECTION 11.7 Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
SECTION 12.2 Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
SECTION 12.3 Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
ARTICLE XIII
REPAYMENT AT OPTION OF HOLDERS
SECTION 13.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
SECTION 13.2 Repayment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
SECTION 13.3 Exercise of Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
SECTION 13.4 When Securities Presented for
Repayment Become Due and Payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
SECTION 13.5 Securities Repaid in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
ARTICLE XIV
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 14.1 Company's Option to Effect Defeasance
or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
SECTION 14.2 Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
SECTION 14.3 Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
SECTION 14.4 Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
</TABLE>
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SECTION 14.5 Deposited Money and Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
SECTION 14.6 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
ARTICLE XV
MEETINGS OF HOLDERS OF SECURITIES
SECTION 15.1 Purposes for Which Meetings May be
Called . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
SECTION 15.2 Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
SECTION 15.3 Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
SECTION 15.4 Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
SECTION 15.5 Determination of Voting Rights; Conduct
and Adjournment Of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
SECTION 15.6 Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
</TABLE>
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<PAGE> 8
INDENTURE, dated as of __________ __, 1996, between IBP, inc., a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), having its principal office at IBP Avenue, Dakota City,
Nebraska 68731, and The Bank of New York, a New York banking corporation, as
Trustee (the "Trustee").
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Securities"), to be
issued in one or more series as in this Indenture provided.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, for and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is agreed, for the equal
and proportionate benefit of all Holders of the Securities or of a series
thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
<PAGE> 9
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles in the United States of America, and, except as
otherwise expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in the United States of America at the date of this
instrument; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms used principally in Article III are defined in that
Article.
"Act", when used with respect to any Holder of a Security, has the
meaning specified in Section 1.4.
"Additional Amounts" has the meaning specified in Section 10.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" is defined to mean as to any particular lease
under which any Person 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 such Person under such lease during the remaining primary term thereof,
discounted from the respective due dates thereof to such date at the rate of
interest per annum, compounded semi-annually, implicit in the terms of such
lease, as determined in good faith by the Company. The net amount of rent
required to be paid under any such
2
<PAGE> 10
lease for any such period shall be the amount of the rent payable by the lessee
with respect to such period, after excluding amounts required to be paid on
account of maintenance, repairs, insurance, taxes, assessments, water rates and
similar charges and contingent rents such as those based on sales. 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 shall not
include any rent required to be paid under such lease subsequent to the first
date upon which it may be so terminated.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.13 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place, in connection with which the term is
used, or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same
city meeting the foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form set forth in either
Exhibit C or Exhibit D to this Indenture or established pursuant to Section 2.1
which is payable to bearer.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" means a Security bearing the legend specified in
Section 2.4, evidencing all or part of a series of Securities, issued to the
Depository for such
3
<PAGE> 11
series or its nominee, and registered in the name of such Depository or
nominee. Book-Entry Securities shall not be deemed to be securities in global
form for purposes of Sections 2.1 and 2.3 and Article III of the Indenture.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means any day that is not a day on which banking institutions in that Place of
Payment or other location are authorized or obligated by law or executive order
to close.
"CEDEL S.A." means Cedel, S.A., or its successor.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Depository" has the meaning specified in Section 3.4.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Chief
Financial Officer, its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Assets" means the total assets of the Company and
its consolidated Subsidiaries as shown on the consolidated balance sheet of the
Company for the most recently completed accounting period for which financial
statements are publicly available, after deducting the amount of all current
liabilities (excluding any constituting Funded Debt by reason of their being
renewable or extendible).
4
<PAGE> 12
"Conversion Date" has the meaning specified in Section 3.12(d).
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such Currency
(other than the ECU or any currency unit or composite currency) and by a
central bank or other public institution of or within the international banking
community for the settlement of transactions, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the principal office of the Trustee in
New York, New York at which at any particular time its corporate trust business
shall be administered, which at the date hereof is 101 Barclay Street, 21W, New
York, New York 10286.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency" means any currency or currencies, composite currency or
currency unit or currency units, including, without limitation, the ECU, issued
by the government of one or more countries or by any recognized confederation
or association of such governments.
"Debt" with respect to any Person is defined to mean (i) any debt (a)
for money borrowed, or (b) evidenced by a bond, note, debenture, or similar
instrument (including purchase money obligations) given in connection with the
acquisition of any business, property or assets, whether by purchase, merger,
consolidation or otherwise, but shall not include any account payable or other
obligation created or assumed by a Person in the ordinary course of business in
connection with the obtaining of materials or services, or (c) which is a
direct or indirect obligation which arises as a result of banker's acceptances;
(ii) any debt of others described in the preceding clause (i) which such Person
has guaranteed or for which it is otherwise directly liable; (iii) the
obligation of such Person as lessee under
5
<PAGE> 13
any lease of property which is reflected on such Person's balance sheet as a
capitalized lease; and (iv) any deferral, amendment, renewal, extension,
supplement or refunding of any liability of the kind described in any of the
preceding clauses (i), (ii) and (iii); provided, however, that, in computing
the Debt of any Person, there shall be excluded any particular Debt if, upon or
prior to the maturity thereof, there shall have been deposited with a
depository in trust money (or evidence of Debt if permitted by the instrument
creating such Debt) in the necessary amount to pay, redeem or satisfy such Debt
as it becomes due, and the amount so deposited shall not be included in any
computation of the assets of such Person.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depository" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Book-Entry
Securities, the clearing agency registered under the Exchange Act.
"Dollar" or "$" means a dollar or other equivalent unit in such
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 3.12(g).
"Dollar Equivalent of the Foreign Currency" has the meaning specified
in Section 3.12(f).
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 3.12(h).
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
6
<PAGE> 14
"European Communities" means the European Union, the European Coal and
Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Date" has the meaning specified in Section 3.4.
"Exchange Rate Agent" means, with respect to Securities of or within
any series, unless otherwise specified with respect to any Securities pursuant
to Section 3.1, a bank, designated pursuant to Section 3.1 or Section 3.13.
"Exchange Rate Officer's Certificate" means a tested telex or a
certificate setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with Section
3.2 in the relevant Currency), payable with respect to a Security of any series
on the basis of such Market Exchange Rate, sent (in the case of a telex) or
signed (in the case of a certificate) by the Treasurer, any Vice President or
any Assistant Treasurer of the Company.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of the
United States Code, as amended from time to time.
"Foreign Currency" means any Currency other than Currency of the
United States.
"Funded Debt" shall mean indebtedness for money borrowed which by its
terms matures at, or is extendible or renewable at the option of the obligor,
to a date more than twelve months after the date of the creation of such
indebtedness.
7
<PAGE> 15
"Government Obligations" means, unless otherwise specified with
respect to any series of Securities pursuant to Section 3.1, securities which
are (i) direct obligations of the government which issued the Currency in which
the Securities of a particular series are payable or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality
of the government which issued the Currency in which the Securities of such
series are payable, the payment of which is unconditionally guaranteed by such
government, which, in either case, are full faith and credit obligations of
such government payable in such Currency and are not callable or redeemable at
the option of the issuer thereof and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such
Government Obligation or a specific payment of interest on or principal of any
such Government Obligation held by such custodian for the account of the holder
of a depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount received by the custodian
in respect of the Government Obligation or the specific payment of interest or
principal of the Government Obligation evidenced by such depository receipt.
"Holder", when used with respect to any Security, means in the case of
a Registered Security, the Person in whose name the Security is registered in
the Security Register and in the case of a Bearer Security, the bearer thereof
and, when used with respect to any coupon, means the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 3.1.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
8
<PAGE> 16
"Lien" means any pledge, mortgage, lien, charge, encumbrance or
security interest.
"Market Exchange Rate" means, unless otherwise specified with respect
to any Securities pursuant to Section 3.1, (i) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such
Foreign Currency calculated by the method specified pursuant to Section 3.1 for
the Securities of the relevant series, (ii) for any conversion of Dollars into
any Foreign Currency, the noon (New York City time) buying rate for such
Foreign Currency for cable transfers quoted in New York City as certified for
customs purposes by the Federal Reserve Bank of New York and (iii) for any
conversion of one Foreign Currency into Dollars or another Foreign Currency,
the spot rate at noon local time in the relevant market at which, in accordance
with normal banking procedures, the Dollars or Foreign Currency into which
conversion is being made could be purchased with the Foreign Currency from
which conversion is being made from major banks located in either New York
City, London or any other principal market for Dollars or such purchased
Foreign Currency, in each case determined by the Exchange Rate Agent. Unless
otherwise specified with respect to any Securities pursuant to Section 3.1, in
the event of the unavailability of any of the exchange rates provided for in
the foregoing clauses (i), (ii) and (iii), the Exchange Rate Agent 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, London or another
principal market for the Currency in question, or such other quotations as the
Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the
Exchange Rate Agent, 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 non-resident
issuer of securities designated in such Currency would purchase such Currency
in order to make payments in respect of such securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity
9
<PAGE> 17
or by declaration of acceleration, notice of redemption, notice of option to
elect repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Vice Chairman of the Board, the President or a Vice President,
and by the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee. One of the Officers signing an Officers' Certificate given pursuant
to Section 10.8 shall be the principal executive, financial or accounting
officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, including an employee of the Company, and who shall be
reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor reasonably satisfactory to the
Trustee has been made;
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<PAGE> 18
(iii) Securities, except to the extent provided in Sections
14.2, 14.3 and 14.6, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article XIV; and
(iv) Securities which have been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, and for the purpose of
making the calculations required by TIA Section 313, (i) the principal amount of
an Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding shall be
the amount of the principal thereof that would be due and payable as of the date
of such determination upon acceleration of the Maturity thereof pursuant to
Section 5.2, (ii) the principal amount of a Security denominated in a Foreign
Currency shall be the Dollar Equivalent of the Currency Unit, determined on the
date of original issuance of such Security, of the principal amount (or, in the
case of an Original Issue Discount Security, the Dollar Equivalent of the
Currency Unit on the date of original issuance of such Security of the amount
determined as provided in (i) above) of such Security, (iii) the principal
amount of any Indexed Security shall be the principal face amount of such
Indexed Security at original issuance, unless otherwise provided with respect to
such Security pursuant to Section 3.1, and (iv) Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, or
upon any such
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determination as to the presence of a quorum, only Securities which the Trustee
actually knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so
to act with respect to such Securities and that the pledgee is not the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of and any premium and interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, association, 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, subject to the provisions of Section
10.2, the principal of and any premium and interest on the Securities of that
series are payable as specified as contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Principal Property" means any facility (together with the land on
which it is erected, any future additions or improvements thereto, and all
machinery and equipment included therein) used by the Company or a Subsidiary
primarily for producing, processing, packaging, storing, or distributing its
products, raw materials, inventories or other materials and supplies, located
in the United States or Canada, owned or leased by the Company or a Subsidiary,
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and having an acquisition cost plus capitalized improvements in excess of 2% of
Consolidated Net Assets as of the date of such determination, but shall not
include any such property financed through the issuance of tax-exempt
governmental obligations, or any such property or portion thereof that has been
determined by Board Resolution not to be of material importance to the
respective business conducted by the Company or Subsidiary, effective as of the
date such Board Resolution is adopted.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security in the form set forth in
either Exhibit A or Exhibit B to this Indenture or established pursuant to
Section 2.1 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 3.1, whether or not such day is a
Business Day.
"Repayment Date", when used with respect to any Security to be repaid
at the option of the Holder, means the date fixed for such repayment pursuant
to this Indenture.
"Repayment Price", when used with respect to any Security to be repaid
at the option of the Holder, means the price at which it is to be repaid
pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or
any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the
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treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller or any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of his knowledge of and familiarity
with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Significant Subsidiary" means, at any time, any Subsidiary that would
be a "Significant Subsidiary" at such time, as such term is defined in
Regulation S-X promulgated by the Commission, as in effect as of the date of
this Indenture.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee pursuant
to Section 3.7.
"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 or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 3.14.
"Subsidiary" means any corporation of which at the time of
determination the Company, directly and/or indirectly through one or more
Subsidiaries, owns more than 50% of the shares of Voting Stock.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder.
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"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed, provided,
however, that in the event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" or "TIA", to the extent required by any such
amendment, means the Trust Indenture Act of 1939 as so amended.
"United States" or "U.S." means the United States of America (including
the states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"Non-United States Person" means any Person who, for United States
federal income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien fiduciary of a foreign estate or trust, or a
foreign partnership one or more of the members of which is, for United States
federal income tax purposes, a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or trust.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" means stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of a corporation (irrespective of
whether or not at the time stock of any other class or classes shall have or
might have voting power by reason of the happening of any contingency).
"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
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SECTION 1.2 Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion by or on behalf of the Company with
respect to compliance with a condition or covenant provided for in this
Indenture except for certificates provided for in Section 10.8 shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) 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;
(3) a statement that, in the opinion of each such individual,
such individual has made such examination or investigation as is
necessary to enable such individual to express an informed opinion
as to whether or not such covenant or condition has been complied
with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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SECTION 1.3 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer actually knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel actually knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
taken by Holders of the Outstanding Securities of all series or one or more
series, as the case may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agents duly appointed in writing. If Securities of a series are issuable as
Bearer Securities, any request, demand,
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authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given or taken by Holders of such series may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
XV, or a combination of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments or record or both are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent or
proxy, or of the holding by any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to Section 6.2) conclusive in favor
of the Trustee and the Company, if made in the manner provided in this Section.
The record of any meeting of Holders of Securities shall be proved in the
manner provided in Section 15.6.
(b) The fact and date of the execution by any Person of any
suchinstrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to such person the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signor's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signor's authority. The fact and date of
the execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(d) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the
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same, may be proved by the production of such Bearer Securities or by a
certificate executed, as depository, by any trust company, bank, banker or
other depository, wherever situated, if such certificate shall be deemed by the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depository, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced
to the Trustee by some other Person, or (3) such Bearer Security is surrendered
in exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may also be proved in any
other manner which the Trustee deems sufficient.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(f) With respect to the Securities of any series all or part of
which are represented by Book-Entry Securities, the following provisions shall
apply:
(1) Upon receipt by the Trustee of (i) any written notice
directing the time, method or place of conducting any proceeding or
exercising any trust or power pursuant to Section 5.12 with respect to
Securities of such series or (ii) any written demand, request or
notice with respect to any matter on which the Holders of Securities
of such series are entitled to act under this Indenture, in each case
from Holders of less than, or proxies representing less than, the
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requisite principal amount of Outstanding Securities of such series
entitled to give such demand, request or notice, the Trustee shall
establish a record date for determining Holders of Outstanding
Securities of such series entitled to join in such demand, request or
notice, which record date shall be the close of business on the day
the Trustee received such demand, request or notice. The Holders on
such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such demand, request or notice
whether or not such Holders remain Holders after such record date;
provided, however, that unless the Holders of the requisite principal
amount of Outstanding Securities of such series shall have joined in
such demand, request or notice prior to the day which is the ninetieth
day after such record date, such demand, request or notice shall
automatically and without further action by any Holder be canceled and
of no further effect. Nothing in this paragraph shall prevent a
Holder, or a proxy of a Holder, from giving, (i) after the expiration
of such 90-day period, a new demand, request or notice identical to a
demand, request or notice which has been canceled pursuant to the
proviso to the preceding sentence or (ii) during any such 90-day
period, a new demand, request or notice which has been canceled
pursuant to the proviso to the preceding sentence or (iii) during any
such 90-day period, a new demand, request or notice contrary to or
different from such demand, request or notice, in either of which
events a new record date shall be established pursuant to the
provisions of this clause (1).
(2) The Company may, but shall not be obligated to, direct
the Trustee to establish a record date for the purpose of determining
the Persons entitled to (i) waive any past default with respect to the
Securities of such series in accordance with Section 5.13 of this
Indenture, (ii) consent to any supplemental indenture in accordance
with Section 9.2 of this Indenture or (iii) waive any term, condition
or provision of any covenant in accordance with Section 10.9 of
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this Indenture. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons,
shall be entitled to waive any such past default, consent to any such
supplemental indenture or waive any such term, condition or provision,
whether or not such Holder remains a Holder after such record date;
provided, however, that unless such waiver or consent is obtained from
the Holders, or duly designated proxies, of the requisite principal
amount of Outstanding Securities of such series prior to the date which
is the ninetieth day after such record date, any such waiver or consent
previously given shall automatically and without further action by any
Holder be canceled and of no further effect.
(g) The Company may, in the circumstances permitted by the Trust
Indenture Act, set any day as the record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given or taken by Holders
of Securities of such series. With regard to any record date set pursuant to
this paragraph, the Holders of Outstanding Securities of the relevant series on
such record date (or their duly appointed agents), and only such Persons, shall
be entitled to give or take the relevant action, whether or not such Holders
remain Holders after such record date. With regard to any action that may be
given or taken hereunder only by Holders of a requisite principal amount of
Outstanding Securities of any series (or their duly appointed agents) and for
which a record date is set pursuant to this paragraph, the Company may, at its
option, set an expiration date after which no such action purported to be given
or taken by any Holder shall be effective hereunder unless given or taken on or
prior to such expiration date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date (or their duly
appointed agents). On or prior to any expiration date set pursuant to this
paragraph, the Company may, on one or more occasions at its option, extend such
date to any later date. Nothing in this paragraph shall prevent any Holder (or
any duly appointed agent thereof) from giving or taking, after any expiration
date, any action identical to, or, at any time, contrary to or different from,
any action
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given or taken, or purported to have been given or taken, hereunder by a Holder
on or prior to such date, in which event the Company may set a record date in
respect thereof pursuant to this paragraph. Notwithstanding the foregoing or
the Trust Indenture Act, the Company shall not set a record date for, and the
provisions of this paragraph shall not apply with respect to, any action to be
given or taken by Holders pursuant to Section 5.1, 5.2 or 5.12.
SECTION 1.5 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this Indenture,
to the attention of its Secretary, or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 1.6 Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event:
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at the address of such Holder as it appears in the Security
Register, not earlier than the earliest date, and not later than the
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latest date, prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities if published in an Authorized Newspaper in The City
of New York, The City of London and in such other city or cities as
may be specified in such Securities on a Business Day at least twice,
the first such publication to be not earlier than the earliest date,
and not later than the latest date, prescribed for the giving of such
notice. Any such notice shall be deemed to have been given on the
date of the first such publication.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. In any case where notice to Holders
of Registered Securities is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder of a
Registered Security shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice to such Holders for every purpose
hereunder. Neither the failure to give notice by publication to Holders of
Bearer Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of any notice to Holders of Registered Securities
given as provided herein.
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 of Securities shall
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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.
SECTION 1.7 Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
SECTION 1.8 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.9 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10 Separability Clause.
In case any provision in this Indenture or the Securities or coupons
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 1.11 Benefits of Indenture.
Nothing in this Indenture or the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar and their
successors hereunder and the Holders of Securities and coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
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SECTION 1.12 Governing Law.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the laws of the State of New York without regard
to conflicts of laws.
SECTION 1.13 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, sinking
fund payment date or Stated Maturity or Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of the Securities or coupons other than a provision in the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section) payment of interest or principal (and premium,
if any) need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date, Redemption Date or
sinking fund payment date, or at the Stated Maturity or Maturity; provided that
no interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be.
SECTION 1.14 Immunity of Incorporators, Shareholders,
Officers, Directors and Employees.
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon or otherwise
in respect thereof, shall be had against any incorporator, shareholder,
officer, director or employee, as such, past, present or future, of the Company
or of any successor corporation, either directly or through the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations of the Company, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
shareholders, officers, directors or employees, as such, of the Company or of
any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of
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the obligations or agreements contained in this Indenture or in any of the
Securities or implied therefrom; and that any and all such personal liability,
either at common law or in equity or by constitution or statute, of, and any
and all such rights and claims against, every such incorporator, shareholder,
officer, director or employee, as such, because of the creation of the
Debt hereby authorized, or under or by reason of the obligations or
agreements contained in this Indenture or in any of the Securities or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such
Securities.
All payments of interest and other amounts, if any, to be made by the
Trustee hereunder shall be made only from the money deposited with the Trustee
and only to the extent that the Trustee shall have sufficient income or proceeds
to make such payments in accordance with the terms of this Indenture, and each
Holder hereof, by such Holder's acceptance of a Security, agrees that such
Holder will look solely to the income and proceeds deposited with the Trustee to
the extent available for distribution to such Holder hereof as provided and that
the Trustee is not personally liable in any manner to such Holder hereof for any
amounts payable or any liability under this Indenture or any Security.
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in
substantially the forms set forth in Exhibits A, B, C or D to this Indenture,
or in such other form (including temporary or permanent global form) as shall
be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistent-
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ly herewith, be determined by the officers executing such Securities or
coupons, as evidenced by their execution of the Securities or coupons. If
temporary Securities of any series are issued in global form as permitted by
Section 3.4, the form thereof shall be established as provided in the preceding
sentence. If the forms of Securities or coupons of any series (or any such
temporary global Security) are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified
by the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by
Section 3.3 for the authentication and delivery of such Securities (or any such
temporary global Security) or coupons. Any portion of the text of any Security
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Security.
Unless otherwise specified as contemplated by Section 3.1, Securities
in bearer form shall have interest coupons attached.
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 or
coupons, as evidenced by their execution of such Securities or coupons.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Bank of New York,
as Trustee
By
---------------------------------
Authorized Signatory
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SECTION 2.3 Securities Issuable in Global Form.
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 3.1, then any such Security shall
represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities of such series from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities of such series represented
thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such Person or Persons as shall be specified therein or in the Company Order
to be delivered to the Trustee pursuant to Section 3.3 or Section 3.4. Subject
to the provisions of Section 3.3 and, if applicable, Section 3.4, the Trustee
shall deliver and redeliver any Security in permanent global form in the manner
and upon instructions given by the Person or Persons specified therein or in
the applicable Company Order. If a Company Order pursuant to Section 3.3 or
3.4 has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a Security in global
form shall be in writing but need not comply with Section 1.2 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 3.3 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 1.2 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 3.3.
Notwithstanding the provisions of Sections 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal of and
any premium and interest on any Security in permanent global form shall be made
to the Person or Persons specified therein.
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Notwithstanding the provisions of Section 3.8 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a
permanent global Security in bearer form, Euroclear or CEDEL S.A.
SECTION 2.4 Form of Legend for Book-Entry Securities.
Any Book-Entry Security authenticated and delivered hereunder shall
bear a legend in substantially the following form:
"This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depository
or a nominee of a Depository. This Security is exchangeable for Securities
registered in the name of a Person other than the Depository or its nominee
only in the limited circumstances described in the Indenture, and no transfer
of this Security (other than a transfer of this Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except
in such limited circumstances."
ARTICLE III
THE SECURITIES
SECTION 3.1 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 Board Resolution and, subject to Section 3.3,
set forth, or determined in the manner provided, in an Officers' Certificate,
or established in one or more indentures sup-
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plemental 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 series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 3.4, 3.5,
3.6, 9.6, 11.7, or 13.5 and except for any Securities which, pursuant
to Section 3.3, are deemed never to have been authenticated and
delivered hereunder);
(3) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities, whether any Securities of the series are to be
issuable initially in temporary global form and whether any Securities
of the series are to be issuable in permanent global form with or
without coupons and, if so, whether beneficial owners of interests in
any such permanent global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 3.5, whether
Registered Securities of the series may be exchanged for Bearer
Securities of the series (if permitted by applicable laws and
regulations), whether Bearer Securities of the series may be exchanged
for Registered Securities of the series, and the circumstances under
which and the place or places where such exchanges may be made and if
securities of the series are to be issuable in global form, the
identity of any initial depository therefor;
(4) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in
whose name that
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Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature, and the extent to which, or the manner in which, any
interest payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 3.4;
(5) the date or dates, or the method by which such date or
dates will be determined or extended, on which the principal of the
Securities of the series is payable;
(6) the rate or rates at which the Securities of the series
shall bear interest, if any, or the formula pursuant to which such
rate or rates shall be determined, the date or dates from which any
such interest shall accrue, or the method by which such date or dates
shall be determined, the Interest Payment Dates on which any such
interest shall be payable and the Regular Record Date, if any, for the
interest payable on any Registered Security on any Interest Payment
Date, or the method by which such date or dates shall be determined,
and the basis upon which interest shall be calculated if other than on
the basis of a 360-day year of twelve 30-day months;
(7) the place or places where, subject to the provisions of
Sections 10.2 and 11.4, the principal of and any premium and any
interest on Securities of the series shall be payable, any Registered
Securities of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered for exchange,
notices and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served and where
notices to Holders of Bearer Securities pursuant to Section 1.6 will
be published;
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(8) the period or periods within which, the price or prices
at which, the Currency in which, and other terms and conditions upon
which Securities of the series may be redeemed, in whole or in part,
at the option of the Company, if the Company is to have that option;
(9) the period or periods within which, the price or prices
at 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
Holders pursuant to Article XIII, or such terms and conditions as
shall be set forth in an Officers' Certificate or supplemental
indenture;
(10) the obligation, if any, of the Company to redeem, repay
or purchase Securities of the series, or particular Securities within
the series, pursuant to any sinking fund or analogous provision or at
the option of a Holder thereof, including without limitation pursuant
to Article XIII, and the period or periods within which or the date or
dates on which, the price or prices at which, the Currency in which,
and other terms and conditions upon which Securities of the series
shall be redeemed, repaid or purchased, in whole or in part, pursuant
to such obligation;
(11) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered Securities
of the series shall be issuable and, if other than the denomination of
$5,000, the denomination or denominations in which any Bearer
Securities of the series shall be issuable.
(12) if other than Dollars, the Currency in which
payment of the principal of and any premium and any interest on the
Securities of the series shall be payable or in which the Securities
of the series shall be denominated and the particular provisions
applicable thereto in accordance with, in addition to or in lieu of
any of the provisions of Section 3.12;
(13) if the principal of and any premium or any interest on
the Securities of the series are
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to be payable, at the election of the Company or a Holder thereof, in
a Currency other than that in which such Securities are denominated or
stated to be payable, the period or periods within which (including
the Election Date), and the terms and conditions upon which, such
election may be made, and the time and manner of determining the
exchange rate between the Currency in which such Securities are
denominated or stated to be payable and the Currency in which such
Securities are to be so payable, in each case in accordance with, in
addition to or in lieu of any of the provisions of Section 3.12;
(14) if the amount of payments of principal of and any
premium or any interest on the Securities of the series may be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or
more Currencies, commodities, equity indices or other indices), the
manner in which such amounts shall be determined;
(15) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.2 or the method by which such portion shall be
determined;
(16) the Person who shall be the Security Registrar and/or
Paying Agent;
(17) whether the Securities of the series shall be issued
upon original issuance in whole or in part in the form of one or more
Book-Entry Securities and, in such case, (a) the Depository with
respect to such Book-Entry Security or Securities; and (b) the
circumstances under which any such Book-Entry Security may be
exchanged for Securities registered in the name of, and any transfer
of such Book-Entry Security may be registered to, a Person other than
such Depository or its nominee, if other than as set forth in Section
3.5;
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(18) the designation of the initial Exchange Rate Agent, if
any;
(19) any provisions in modification of, in addition to or in
lieu of the provisions of Article XIV that shall be applicable to the
Securities of the series;
(20) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(21) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to
Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein;
(22) if either or both of the provisions of Section 15.2 or
15.3 are applicable to the Securities of such series;
(23) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities
of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(24) if Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and/or terms of such certificates, documents or conditions;
(25) whether and under what circumstances the Company will
pay Additional Amounts as contemplated by Section 10.4 on the
Securities of the series to any Holder who is a Non-United States
Person (including any modification to the definition of such term)
in respect of any tax, assessment or governmental charge and, if
so, whether the Company will have the option to redeem such
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Securities rather than pay such Additional Amounts (and the terms of
any such option);
(26) the price or prices at which the Securities of the
series will be issued;
(27) the date or dates from which interest, if any, on the
Securities of the series shall accrue or the method by which such date
or dates shall be determined, the dates on which such interest, if
any, will be payable, the date on which payment of such interest, if
any, will commence and the Regular Record Dates for such Interest
Payment Dates, if any, and the Person to whom any interest on the
Securities of the series will be payable, if other than the Person in
whose name the Securities are registered on any Regular Record Date;
and
(28) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series
(which terms shall not be inconsistent with the requirements of the
Trust Indenture Act or the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 3.3) set forth in the Officers' Certificate referred to
above or in any such indenture supplemental hereto. Not all Securities of any
one series need be issued at the same time, and, unless otherwise provided, a
series may be reopened for issuances of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, such Board Resolution shall be delivered to
the Trustee at or prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
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SECTION 3.2 Denominations.
Unless otherwise provided as contemplated by Section 3.1 with respect
to any series of Securities, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in the denomination of $5,000.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed
on behalf of the Company by its Chairman of the Board, its Vice Chairman of the
Board, its President or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or an Assistant Secretary. The
signature of any of these officers on the Securities or coupons may be manual
or facsimile signatures of the present or any future such authorized officer
and may be imprinted or otherwise reproduced on the Securities.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities or
coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and make available for delivery such Securities;
provided, however, that, in connection with its original issuance, no Bearer
Security shall be mailed or otherwise delivered to any location in the United
States; and provided, further, that, unless otherwise specified with respect to
any series of Securities pursuant to Section 3.1, a Bearer Security may be
delivered in connection with its original issuance only if the Person entitled
to receive such Bearer Security shall have furnished a certificate in the form
set forth in Exhibit E.1 to this Indenture, dated
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no earlier than 15 days prior to the earlier of the date on which such Bearer
Security is delivered and the date on which any temporary global Security first
becomes exchangeable for such Bearer Security in accordance with the terms of
such temporary global Security and this Indenture. If any Security shall be
represented by a permanent global Bearer Security, then, for purposes of this
Section and Section 3.4, the notation of a beneficial owner's interest therein
upon original issuance of such Security or upon exchange of a portion of a
temporary global Security shall be deemed to be delivered in connection with
its original issuance of such beneficial owner's interest in such permanent
global Security. Except as permitted by Section 3.6, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled. If not all the
Securities of any series are to be issued at one time and if the Board
Resolution or supplemental indenture establishing such series shall so permit,
such Company Order may set forth procedures acceptable to the Trustee for the
issuance of such Securities and determining terms of particular Securities of
such series such as interest rate, maturity date, date of issuance and date
from which interest shall accrue.
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 TIA Sections 315(a)
through 315 (d) shall be fully protected in relying upon, an Opinion of
Counsel stating:
(a) that the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture;
(b) that the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
(c) that such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and delivered by
the Company to the Trustee for authentication in accordance with this
Indenture, authenticated and delivered by the Trustee in accordance with this
Indenture and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
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binding obligations of the Company, enforceable in accordance with their terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or transfer and other similar laws of general
applicability relating to or affecting the enforcement of creditors' rights, to
general equitable principles (regardless of whether enforcement is considered
in a proceeding in equity or at law) and to such other qualifications as such
counsel shall conclude do not materially affect the rights of Holders of such
Securities and any coupons; and
(d) that all legal requirements in respect of the execution and
delivery by the Company of such Securities have been complied with.
Notwithstanding the provisions of Section 3.1 and of the two preceding
paragraphs, if all Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 3.1 or the Company Order and Opinion of
Counsel otherwise required pursuant to the preceding paragraphs at or prior to
the time of authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued.
The Trustee shall not be required to authenticate and deliver any such
Securities if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
Each Registered Security shall be dated the date of its
authentication; and each Bearer Security shall be dated as of the date
specified as contemplated by Section 3.1.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security, or the Security to which such coupon appertains, a certificate
of authentication substantially in the form provided for herein duly executed
by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
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Notwithstanding the foregoing, if any Security shall have been authenticated
and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided
in Section 3.9 together with a written statement (which need not comply with
Section 1.2 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes
of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 3.4 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
make available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities or coupons may determine, as
conclusively evidenced by their execution of such Securities or coupons. In
the case of Securities of any series, such temporary Securities may be in
global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company maintained pursuant to Section 10.2 in a Place
of Payment for such series for the purpose of exchanges of Securities of such
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series (accompanied by any unmatured
coupons appertaining thereto), the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a like
aggregate principal amount of definitive
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Securities of the same series and of like tenor of authorized denominations;
provided, however, that no definitive Bearer Security shall be delivered in
exchange for a temporary Registered Security; and provided further that a
definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section
3.3. Until so exchanged the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
If temporary Securities of any series are issued in global form, any
such temporary global Security shall, unless otherwise provided therein, be
delivered to the London office of a depository or common depository (the
"Common Depository"), for the benefit of Euroclear and CEDEL S.A., for credit
to the respective accounts of the beneficial owners of such Securities (or to
such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities of that series, in aggregate principal amount equal to
the principal amount of such temporary global Security, executed by the
Company. On or after the Exchange Date such temporary global Security shall be
surrendered by the Common Depository to the Trustee, as the Company's agent for
such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities of such series without charge and the Trustee shall
authenticate and make available for delivery, in exchange for each portion of
such temporary global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such temporary global Security to be exchanged;
provided, however, that, unless otherwise specified in such temporary global
Security, upon such presentation by the Common Depository, such temporary
global Security is accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by Euroclear as to the portion of such temporary
global Security held for its account then to be exchanged and a certificate
dated the Exchange Date or a subsequent date and signed by CEDEL S.A. as to the
portion of such temporary global Security held for its account then to be
exchanged, each in the form set forth in Exhibit E.2 to this
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Indenture. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 3.1, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof;
provided, however, that definitive Bearer Securities shall be delivered in
exchange for a portion of a temporary global Security only in compliance with
the requirements of Section 3.3.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL S.A., as the case may be, to request such exchange on such
account holder's behalf and delivers to Euroclear or CEDEL S.A., as the case
may be, a certificate in the form set forth in Exhibit E.1 to this Indenture,
dated no earlier than 15 days prior to the Exchange Date, copies of which
certificate shall be available from the offices of Euroclear and CEDEL S.A.,
the Trustee, any Authenticating Agent appointed for such series of Securities
and each Paying Agent. Unless otherwise specified in such temporary global
Security, any such exchange shall be made free of charge to the beneficial
owners of such temporary global Security, except that a Person receiving
definitive Securities must bear the cost of insurance, postage, transportation
and the like in the event that such Person does not take delivery of such
definitive Securities in person at the offices of Euroclear or CEDEL S.A.
Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary global Security shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 3.1, interest payable on a temporary
global Security on an Interest Payment Date for Securities of such series
occurring prior to the applicable Exchange Date shall be payable to Euroclear
and CEDEL S.A. on such Interest Payment Date upon delivery by Euroclear and
CEDEL S.A. to the Trustee of a
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certificate or certificates in the form set forth in Exhibit E.3 to this
Indenture, for credit without further interest on or after such Interest
Payment Date to the respective accounts of the Persons who are the beneficial
owners of such temporary global Security on such Interest Payment Date and who
have each delivered to Euroclear or CEDEL S.A., as the case may be, a
certificate dated no earlier than 15 days prior to the Interest Payment Date
occurring prior to such Exchange Date in the form set forth in Exhibit E.4 to
this Indenture. Any interest so received by Euroclear and CEDEL S.A. and not
paid as herein provided shall be returned to the Trustee immediately prior to
the expiration of two years after such Interest Payment Date in order to be
repaid to the Company in accordance with Section 10.3.
SECTION 3.5 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register for each series of Securities (the registers maintained
in the Corporate Trust Office of the Trustee and in any other office or agency
of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Registered Securities and of transfers of Registered Securities. The
Security Register shall be in written form or any other form capable of being
converted into written form within a reasonable time. At all reasonable times,
the Security Register shall be open to inspection by the Trustee. The Trustee
is hereby initially appointed as security registrar (the "Security Registrar")
for the purpose of registering Registered Securities and transfers of
Registered Securities as herein provided.
Upon due surrender for registration of transfer of any Registered
Security of any series at the office or agency in a Place of Payment for such
series, the Company shall execute, and the Trustee shall authenticate and
make available for delivery in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities
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of the same series of any authorized denominations and of a like aggregate
principal amount and tenor, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any Registered Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Registered Securities which
the Holder making the exchange is entitled to receive.
If (but only if) expressly permitted in or pursuant to the applicable
Board Resolution and (subject to Section 3.3) set forth in the applicable
Officers' Certificate, or in any indenture supplemental hereto, delivered as
contemplated by Section 3.1, at the option of the Holder, Bearer Securities of
any series may be exchanged for Registered Securities of the same series of any
authorized denomination and of a like aggregate principal amount and tenor,
upon surrender of the Bearer Securities to be exchanged at any such office or
agency, with all unmatured coupons and all matured coupons in default
appertaining thereto. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default,
such exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company in an amount equal to the face
amount of such missing coupon or coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there is
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such
Securities shall surrender to any Paying Agent any such missing coupon in
respect of which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; provided, however, that, except
as otherwise provided in Section 10.2, interest represented by coupons shall be
payable only upon presentation and surrender of those coupons at an office or
agency located outside the United States. Notwithstanding the foregoing, in
case a Bearer Security of any series is surrendered at any such office or
agency in a permitted exchange for a Registered Security of the same series and
like tenor after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon
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relating to such Interest Payment Date or proposed date for payment, as the
case may be, and interest or Defaulted Interest, as the case may be, will not
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such coupon when due
in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 3.1, any permanent global Security shall be
exchangeable only as provided in this paragraph. If any beneficial owner of an
interest in a permanent global Security is entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 3.1
and provided that any applicable notice provided in the permanent global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged,
the Company shall deliver to the Trustee definitive Securities of that series
in aggregate principal amount equal to the principal amount of such beneficial
owner's interest in such permanent global Security, executed by the Company. On
or after the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered by the Common Depository or such
other depository as shall be specified in the Company Order with respect
thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities of
such series without charge, and the Trustee shall authenticate and make
available for delivery, in exchange for each portion of such permanent global
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of
such permanent global Security to be exchanged that, unless the Securities of
the series are not issuable both as Bearer Securities and as Registered
Securities, as specified as contemplated by Section 3.1, shall be in the form
of Bearer Securities or Registered Securities, or any combination
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thereof, as shall be specified by the beneficial owner thereof; provided,
however, that no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities to be redeemed
and ending on the relevant Redemption Date if the Security for which exchange
is requested may be among those selected for redemption; and provided further
that no Bearer Security delivered in exchange for a portion of a permanent
global Security shall be mailed or otherwise delivered to any location in the
United States. If a Registered Security is issued in exchange for any portion
of a permanent global Security after the close of business at the office or
agency where such exchange occurs on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of Defaulted
Interest, interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company 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 Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4, 9.6, or 11.7 not involving any transfer.
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The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the
opening of business 15 days before any selection of Securities of that series
to be redeemed and ending at the close of business on (A) if Securities of the
series are issuable only as Registered Securities, the day of the mailing of
the relevant notice of redemption and (B) if Securities of the series are
issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Securities of the series are also issuable as
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption, (ii) to register the transfer of or exchange any
Registered Security so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part, (iii) to exchange
any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor; provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
Notwithstanding the foregoing and except as otherwise specified or
contemplated by Section 3.1, any Book-Entry Security shall be exchangeable
pursuant to this Section 3.5 or Sections 3.4, 9.6 and 11.7 for Securities
registered in the name of, and a transfer of a Book-Entry Security or any
series may be registered to, any Person other than the Depository for such
Security or its nominee only if (i) such Depository notifies the Company that
it is unwilling or unable to continue as Depository for such Book-Entry
Security or if at any time such Depository ceases to be a clearing agency
registered under the Exchange Act, (ii) the Company executes and delivers to
the Trustee a Company Order that such Book-Entry Security shall be so
exchangeable and the transfer thereof so registerable or (iii) there shall have
occurred and be continuing an Event of Default, or an event which after notice
or lapse of time would be an Event of Default, with respect to the Securities
of such series. Upon the occurrence in respect of any Book-Entry Security of
any series of any one or more of the conditions specified in clauses (i), (ii)
or (iii) of the preceding sentence or such other conditions as may be specified
as contemplated by Section 3.1 for such series, such Book-Entry Security may be
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exchanged for Securities registered in the names of, and the transfer of such
Book-Entry Security may be registered to, such Persons (including Persons other
than the Depository with respect to such series and its nominees) as such
Depository shall direct. Notwithstanding any other provision of this
Indenture, any Security authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, any Book-Entry Security shall
also be a Book-Entry Security and shall bear the legend specified in Section
2.4 except for any Security authenticated and delivered in exchange for, or
upon registration of transfer of, Book-Entry Security pursuant to the preceding
sentence.
Notwithstanding anything in this Indenture or in the terms of a
Security to the contrary, the exchange of Bearer Securities for Registered
Securities will be subject to satisfaction of the provisions of the United
States federal income tax laws in effect at the time of such exchange. None of
the Company, the Trustee or any Authenticating Agent of the Company or the
Trustee (any of which, other than the Company, shall rely on an Officers'
Certificate and an Opinion of Counsel) shall be required to exchange any Bearer
Security for a Registered Security if as a result thereof and in the Company's
reasonable judgment, the Company would incur adverse consequences under then
applicable United States federal income tax laws.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and make available for delivery in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security
and such mutilated Security or a Security with a mutilated coupon, if any,
shall be cancelled by the Trustee in accordance with the Indenture.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon and (ii) such security or indemnity as may be required by
them, then, in the absence of notice to the Company or the Trustee that
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such Security or coupon has been acquired by a bona fide purchaser, the Company
shall, subject to the following paragraph, execute, and upon Company Order the
Trustee shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding,
with coupons corresponding to the coupons, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which such destroyed,
lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security or coupon;
provided, however, that principal of and any premium and interest on Bearer
Securities shall, except as otherwise provided in Section 10.2, be payable only
at an office or agency located outside the United States.
Upon the issuance of any new Security under this Section, the Company
may require 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.
Every new Security of any series, with any coupons appertaining
thereto, issued pursuant to this Section in lieu of any destroyed, lost or
stolen Security or in exchange for a Security to which a destroyed, lost or
stolen coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen
Security and any coupons appertaining thereto, or the destroyed, lost or stolen
coupon shall be at any time enforceable by anyone, and any such new Security
and coupons, if any, shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of that series
and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and
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remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons.
SECTION 3.7 Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 3.1 with respect
to any series of Securities, interest on any Registered Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose pursuant to Section 10.2; provided, however, that each
installment of interest on any Registered Security may at the Company's option
be paid by (i) mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to Section 3.8, to the
address of such Person as it appears on the Security Register or (ii) transfer
to an account maintained by the payee located in the United States.
Unless otherwise provided as contemplated by Section 3.1 with respect
to the Securities of any series, payment of interest may be made, in the case
of a Bearer Security, by transfer to an account maintained by the payee with a
bank located outside the United States.
Unless otherwise provided as contemplated by Section 3.1, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to each of Euroclear and CEDEL S.A. with
respect to that portion of such permanent global Security held for its account
by the Common Depository, for the purpose of permitting each of Euroclear and
CEDEL S.A. to credit the interest received by it in respect of such permanent
global Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such defaulted
interest and, if applicable, interest on such defaulted interest (to the extent
lawful) at the rate specified in the Securities of such series (such defaulted
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interest and, if applicable, interest thereon herein collectively called
"Defaulted Interest") may be paid by the Company, at its election in each case,
as provided in clause (1) and (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to
Section 3.1 for the Securities of such series and except, if
applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e))
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 which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
given in the manner provided in Section 1.6, 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 so given, such Defaulted Interest shall be paid to the Persons in
whose names the Registered Securi-
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ties of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (2); and
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 3.5,
each Security delivered under this Indenture upon registration of 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 3.8 Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as
the owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 3.5 and 3.7) any
interest on such Security and for all other purposes whatsoever, whether or not
such Security shall be overdue, and none of the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer of any Bearer Security and the Bearer of
any coupon as the owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon shall be overdue, and none of the
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Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar 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 Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any Depository, as a Holder, with respect
to such global Security or impair, as between such Depository and owners of
beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depository (or its
nominee) as Holder of such global Security.
SECTION 3.9 Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee. All Securities and coupons so delivered shall be
promptly cancelled by the Trustee. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in
lieu of or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled
Securities and coupons held by the Trustee shall be disposed of by the Trustee
in accordance with its customary procedures.
Notwithstanding the foregoing, with respect to any Book-Entry
Security, nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the
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Trustee, from giving effect to any written certification, proxy or other
authorization furnished by a Depository or impair, as between a Depository and
holders of beneficial interests in any Book-Entry Security, the operation of
customary practices governing the exercise of the rights of the Depository (or
its nominee) as Holder of such Book-Entry Security.
SECTION 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.11 Electronic Security Issuance.
The Securities may, pursuant to a Board Resolution and Officers'
Certificate complying with Section 3.1 hereof, be issued by means of an
electronic issuance system. Any such Security issuance instructions shall
specify the name, address and taxpayer identification number of the Holder, the
principal amount and Maturity of the Security, the interest rate to be borne by
the Security and any other terms not inconsistent with such Board Resolution
and Officers' Certificate. Nothing in this Section 3.11 shall be construed as
prohibiting the Company from issuing Securities by any means not inconsistent
with the provisions of this Indenture.
SECTION 3.12 Currency and Manner of Payments in Respect of Securities.
(a) Unless otherwise specified with respect to any Securities
pursuant to Section 3.1, with respect to Registered Securities of any series
not permitting the election provided for in paragraph (b) below or the Holders
of which have not made the election provided for in paragraph (b) below, and
with respect to Bearer Securities of any series, except as provided in
paragraph (d) below, payment of the principal of (and premium, if any) and
interest, if any, on any Registered or Bearer Security of such series will be
made in the Currency in which such Registered Security or Bearer Security, as
the case may be, is payable. The provisions of this Section 3.12 may be
modified or superseded with respect to any Securities pursuant to Section 3.1.
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(b) It may be provided pursuant to Section 3.1 with respect to
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of (and
premium, if any) or interest, if any, on such Registered Securities in any of
the Currencies which may be designated for such election by delivering to the
Trustee a written election with signature guarantees and in the applicable form
established pursuant to Section 3.1 not later than the close of business on the
Election Date immediately preceding the applicable payment date. If a Holder
so elects to receive such payments in any such Currency, such election will
remain in effect for such Holder or any transferee of such Holder until changed
by such Holder or such transferee by written notice to the Trustee (but any
such change must be made not later than the close of business on the Election
Date immediately preceding the next payment date to be effective for the
payment to be made on such payment date and no such change of election may be
made with respect to payments to be made on any Registered Security of such
series with respect to which an Event of Default has occurred or with respect
to which the Company has deposited funds pursuant to Articles IV and XIV or
with respect to which a notice of redemption has been given by the Company or a
notice of option to elect repayment has been sent by such Holder or such
transferee). Any Holder of any such Registered Security who shall not have
delivered any such election to the Trustee before the close of business on the
applicable Election Date will be paid the amount due on the applicable payment
date in the relevant Currency as provided in Section 3.12(a). The Trustee
shall notify the Exchange Rate Agent as soon as practicable after the Election
Date of the aggregate principal amount of Registered Securities for which
Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 3.1, if the
election referred to in paragraph (b) above has been provided for pursuant to
Section 3.1, then, unless otherwise specified pursuant to Section 3.1, not
later than the fourth Business Day after the Election Date for each payment
date for Registered Securities of any series, the Exchange Rate Agent will
deliver to the Company a written notice specifying, in the Currency in which
Registered Securities of such series are payable, the respective aggregate
amounts of principal of (and premium, if any) and interest, if any, on the
Registered Securities to be paid on such payment date, specifying the amounts
in such Currency
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so payable in respect of the Registered Securities as to which the Holders of
Registered Securities of such series shall have elected to be paid in another
Currency as provided in paragraph (b) above. If the election referred to in
paragraph (b) above has been provided for pursuant to Section 3.1 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 3.1, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered
Securities an Exchange Rate Officer's Certificate in respect of the Dollar or
Foreign Currency payments to be made on such payment date. Unless otherwise
specified pursuant to Section 3.1, the Dollar or Foreign Currency amount
receivable by Holders of Registered Securities who have elected payment in a
Currency as provided in paragraph (b) above shall be determined by the Company
on the basis of the applicable Market Exchange Rate in effect on the third
Business Day (the "Valuation Date") immediately preceding each payment date.
(d) If a Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or payable other than
pursuant to an election provided for pursuant to paragraph (b) above, then with
respect to each date for the payment of principal of (and premium, if any) and
interest, if any, on the applicable Securities denominated or payable in such
Foreign Currency occurring after the last date on which such Foreign Currency
was used (the "Conversion Date"), the Dollar shall be the Currency of payment
for use on each such payment date. Unless otherwise specified pursuant to
Section 3.1, the Dollar amount to be paid by the Company 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, in the case of a Foreign Currency other than a
currency unit, the Dollar Equivalent of the Foreign Currency or, in the case of
a currency unit, the Dollar Equivalent of the Currency Unit, in each case as
determined by the Exchange Rate Agent in the manner provided in paragraph (f)
or (g) below.
(e) Unless otherwise specified pursuant to Section 3.1, if the
Holder of a Registered Security denominated in any Currency shall have elected
to be paid in another Currency as provided in paragraph (b) above, and a
Conversion Event occurs with respect to such elected Currency, such Holder
shall receive payment in the Currency in which payment would have been made in
the absence of such election; and if a Conversion Event occurs with respect to
the Currency in which payment would have been made in the absence of such elec-
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tion, such Holder shall receive payment in Dollars as provided in paragraph (d)
above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at
the Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and subject to the provisions of
paragraph (h) below shall be the sum of each amount obtained by converting the
Specified Amount of each Component Currency into Dollars at the Market Exchange
Rate for such Component Currency on the Valuation Date with respect to each
payment.
(h) For purposes of this Section 3.12 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 relevant currency
unit, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which
were represented in the relevant currency unit, including, but not
limited to, 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
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any Component Currency shall be divided into two or more currencies,
the Specified Amount of such Component Currency shall be replaced by
amounts of such two or more currencies, having an aggregate Dollar
equivalent value at the Market Exchange Rate on the date of such
replacement equal to the Dollar equivalent value of the Specified
Amount of such former Component Currency at the Market Exchange Rate
immediately before such division and such amounts shall thereafter be
Specified Amounts and such currencies shall thereafter be Component
Currencies. If, after the Conversion Date of the relevant currency
unit, including, but not limited to, the ECU, a Conversion Event
(other than any event referred to above in this definition of
"Specified Amount") occurs with respect to any Component Currency of
such currency unit and is continuing on the applicable Valuation Date,
the Specified Amount of such Component Currency shall, for purposes of
calculating the Dollar Equivalent of the Currency Unit, be converted
into Dollars at the Market Exchange Rate in effect on the Conversion
Date of such Component Currency.
"Election Date" shall mean the date for any series of
Registered Securities as specified pursuant to clause 13 of Section
3.1 by which the written election referred to in paragraph (b) above
may be made.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency,the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and the changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee and all Holders of such Securities
denominated or payable in the relevant Currency. The Exchange Rate Agent shall
promptly give written notice to the Company and the Trustee of any such
decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will promptly give written notice thereof to the Trustee and to the Exchange
Rate Agent (and the Trustee will promptly thereafter give notice in the
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manner provided for in Section 1.6 to the affected Holders) specifying the
Conversion Date. In the event the Company so determines that a Conversion
Event has occurred with respect to the ECU or any other currency unit in which
Securities are denominated or payable, the Company will promptly give written
notice thereof to the Trustee and to the Exchange Rate Agent (and the Trustee
will promptly thereafter give notice in the manner provided for in Section 1.6
to the affected Holders) specifying the Conversion Date and the Specified
Amount of each Component Currency on the Conversion Date. In the event the
Company determines in good faith that any subsequent change in any Component
Currency as set forth in the definition of Specified Amount above has occurred,
the Company will promptly give written notice to the Trustee and the Exchange
Rate Agent.
The Trustee shall be fully justified and protected in relying
and acting upon information received by it from the Company and the Exchange
Rate Agent and shall not otherwise have any duty or obligation to determine the
accuracy or validity of such information independent of the Company or the
Exchange Rate Agent.
SECTION 3.13 Appointment and Resignation of Successor Exchange Rate Agent.
(a) Unless otherwise specified pursuant to Section 3.1, if and so
long as the Securities of any series (i) are denominated in a Currency other
than Dollars or (ii) may be payable in a Currency other than Dollars, or so
long as it is required under any other provision of this Indenture, then the
Company will maintain with respect to each such series of Securities, or as so
required, at least one Exchange Rate Agent. The Company will cause the
Exchange Rate Agent to make the necessary foreign exchange determinations at
the time and in the manner specified pursuant to Section 3.1 for the purpose of
determining the applicable rate of exchange and, if applicable, for the purpose
of converting the issued Currency into the applicable payment Currency for the
payment of principal (and premium, if any) and interest, if any, pursuant to
Section 3.12.
(b) No resignation of the Exchange Rate Agent and no appointment
of a successor Exchange Rate Agent pursuant to this Section shall become
effective until the acceptance of appointment by the successor Exchange Rate
Agent as evi-
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denced by a written instrument delivered to the Company and the Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agent for any cause with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 3.1, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued
by the Company on the same date and that are initially denominated and/or
payable in the same Currency).
SECTION 3.14 Optional Extension of Stated Maturity.
The provisions of this Section 3.14 may be made applicable to any
series of Securities pursuant to Section 3.1 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 3.1).
The Stated Maturity of any Security of such series may be extended at the
option of the Company for the period or periods specified on the face of such
Security (each an "Extension Period") up to but not beyond the date (the "Final
Maturity") set forth on the face of such Security. The Company may exercise
such option with respect to any Security by notifying the Trustee of such
exercise at least 50 but not more than 60 days prior to the Stated Maturity of
such Security in effect prior to the exercise of such option (the "Original
Stated Maturity"). If the Company exercises such option, the Trustee shall
transmit, in the manner provided for in Section 1.6, to the Holder of such
Security not later than 40 days prior to the Original Stated Maturity a notice
(the "Extension Notice") indicating (i) the election of the Company to extend
the Stated Maturity, (ii) the new Stated Maturity, (iii) the interest rate
applicable to the Extension Period and (iv) the provisions, if any, for
redemption during such Extension Period. Upon the Trustee's transmittal of the
Extension Notice, the Stated Maturity of such Security shall be extended
automatically and, except as modified by the Extension Notice and as described
in the
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next paragraph, such Security will have the same terms as prior to the
transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 1.6, notice of such higher
interest rate to the Holder of such Security. Such notice shall be
irrevocable. All Securities with respect to which the Stated Maturity is
extended will bear such higher interest rate.
If the Company extends the Maturity of any Security, the Holder will
have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Maturity thereof, the Holder
must follow the procedures set forth in Article XIII for repayment at the
option of Holders, except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
SECTION 3.15 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such CUSIP numbers.
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ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities (except as to any surviving
rights of registration of transfer or exchange of Securities of such series
herein expressly provided for, and any right to receive Additional Amounts, as
provided in Section 10.4), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture as to such series when:
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for exchange
for Registered Securities and maturing after such exchange, the
surrender of which is not required or has been waived as provided in
Section 3.5, (ii) Securities and coupons which have been destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 3.6, (iii) coupons appertaining to Securities called for
redemption and maturing after the relevant Redemption Date, the
surrender of which has been waived as provided in Section 11.6, and
(iv) Securities and coupons of such series for the payment of which
money has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.3) have been
delivered to the Trustee for cancellation; or
(B) all such Securities and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation,
(i) have become due and payable, or
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(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, are to
be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose, an amount in the Currency in
which the Securities of such series are payable sufficient to pay and
discharge the entire indebtedness on such Securities and coupons not
theretofore delivered to the Trustee for cancellation, for principal
(and premium, if any) and any interest to the date of such deposit (in
the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.6, the obligations of
the Company to any Authenticating Agent under Section 6.13 and, if money shall
have been deposited with the Trustee pursuant to clause (1)(B) of this Section,
the obligations of the Trustee under Section 4.2 and the last paragraph of
Section 10.3 shall survive.
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SECTION 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and any interest for the payment of which such money has been
deposited with the Trustee.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (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):
(1) default in the payment of any interest upon or any
Additional Amounts payable in respect of any Security of that series
at its Maturity, and continuance of such default for a period of 30
days; or
(2) default in any payment of the principal of (or premium,
if any, upon) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of the Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture which affects or is
applicable to the Securities of that series (other than a default in
the performance, or breach of a covenant or
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warranty which is specifically dealt with elsewhere in this Section or
which has expressly been included in this Indenture solely for the
benefit of one or more series of Securities other than that series),
and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities of that series, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect
of the Company in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by
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it of a petition or answer or consent seeking reorganization or relief
under any applicable federal or state law, or the consent by it to the
filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to
Securities of that series.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in clause (1), (2), (3), (4) or (7)
of Section 5.1 with respect to Securities of any series at the time Outstanding
occurs and is continuing, then in every such case the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities of that
series may declare the principal amount (or, if any of the Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount of such Securities as may be specified in the terms thereof) of all of
the Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default specified in Section
5.1(5) or 5.1(6) occurs and is continuing, then the principal amount of all the
Securities shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice
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to the Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to Section
3.1 for the Securities of such series and except, if applicable, as
provided in Sections 3.12(b), 3.12(d) and 3.12(e)),
(A) all overdue interest on all Outstanding Securities
of that series and any related coupons,
(B) the unpaid principal of (and premium, if any, on)
any Outstanding Securities of that series which have become
due otherwise than by such declaration of acceleration and any
interest thereon at the rate or rates prescribed therefor in
such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non- payment of amount of the principal of (or
premium, if any) or interest on Securities of that series which have
become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
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SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Security and any related coupon of any series when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of that series and any coupons
appertaining thereto, the whole amount then due and payable on such Securities
of that series and coupons for principal and any premium and interest and, to
the extent that payment of such interest shall be legally enforceable, interest
on any overdue principal and on the premium, if any, and overdue interest, at
the rate or rates prescribed therefor in such Securities of that series and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any coupons appertaining thereto by such appropriate judicial proceedings
as the Trustee shall deem most effectual to
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protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the 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 on
the Company for the payment of overdue principal, premium, if any, or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of
principal and any premium, or such portion of the principal amount of
any series of Original Issue Discount Securities or Indexed Securities
as may be specified in the terms of such series, and interest owing
and unpaid in respect of the Securities 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 the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders of Securities and coupons
allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities and coupons to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities and coupons, to pay to the Trustee any
amount due it for the reasonable
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compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
SECTION 5.5 Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claims under this Indenture or the Securities
or coupons may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
SECTION 5.6 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any
premium or interest, upon presentation of the Securities or coupons, or both,
as the case may be, and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.6; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities and
coupons in respect of which or for the benefit of which such
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money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Securities
and coupons for principal and any premium and interest, respectively.
SECTION 5.7 Limitation on Suits.
No Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless;
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 30 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 30-day period by the Holders of
a majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority
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or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
SECTION 5.8 Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(subject to Section 3.7) interest on such Security or payment of such coupon on
the Stated Maturity or Maturities expressed in such Security or coupon (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders of Securities and coupons shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 3.6, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise,
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shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
or coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders of Securities or coupons may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 5.12 Control by Holders of Securities.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series 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, provided that,
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 5.13 Waiver of Past Defaults.
Subject to Section 5.2, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series and any coupons appertaining
thereto waive any past default hereunder with respect to the Securities of such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any)
or any interest on any Security or related coupon, or
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(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
or coupon by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder of any Security or coupon for the enforcement
of the payment of the principal of or any premium or interest on any Security
or the payment of any coupon on or after the Stated Maturity or Maturities
expressed in such Security or coupon (or, in the case of redemption, on or
after the Redemption Date).
SECTION 5.15 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby
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expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder with
respect to the Securities of any series, the Trustee shall transmit, in the
manner and to extent provided in TIA Section 313(c), notice of such default
hereunder known to the Trustee, unless such Default shall have been cured or
waived; provided, however, that, except in the case of a Default in the payment
of the principal of (or premium, if any) or interest on any Security of such
series or in the payment of any sinking fund installment with respect to
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 and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders of Securities of such series and any related coupons.
SECTION 6.2 Certain Rights of Trustee.
Subject to the provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order or as otherwise
expressly provided herein and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
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(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) as a condition to the taking or omitting of any action by it
hereunder, the Trustee may consult with counsel of its selection and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Securities of any series or any related coupons pursuant
to this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon, other evidence of indebtedness or other document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Company, personally or by
agent or attorney; 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,
custodians, nominees or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent, custodian, nominee or
attorney appointed with due care by it hereunder;
(h) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its
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duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it; and
(i) the Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
SECTION 6.3 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.
SECTION 6.4 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and
coupons and, subject to TIA Sections 310(b) and 311, may otherwise deal with
the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 6.5 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for
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interest on any money received by it hereunder except as otherwise agreed in
writing with the Company.
SECTION 6.6 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee or any predecessor Trustee from time
to time such reasonable compensation as shall be agreed in writing
from time to time between the Company and the Trustee for all services
rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an
express trust) in accordance with a written agreement between the
Company and the Trustee;
(2) except as otherwise expressly provided herein, to
reimburse the Trustee or any predecessor Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any provision of this Indenture
(including the compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence, willful misconduct or bad
faith; and
(3) to indemnify the Trustee and any predecessor Trustee for,
and to hold it harmless against, any and all loss, liability, damage,
claim or expense including taxes (other than taxes based on the income
of the Trustee) incurred without negligence, willful misconduct or bad
faith on its part, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or
duties hereunder.
The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 6.6, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
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When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1(5) or Section 5.1(6), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 6.7 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.8.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.8 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee
and to the Company. If the instrument of acceptance by a successor Trustee
required by Section 6.8 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or
by any
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Holder of a Security who has been a bona fide Holder of a Security for
at least six months, or
(2) the Trustee shall cease to be eligible under TIA Section
310(a) and shall fail to resign after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security
for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver 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, (i) the Company, by a Board Resolution, may
remove the Trustee with respect to all Securities, or (ii) subject to TIA
Section 315(e), any Holder of a Security who has been a bona fide Holder of a
Security for at least six months may, on behalf of such bona fide Holder and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities and the appointment
of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 6.8. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 6.8,
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become the successor Trustee with respect to the Securities of such series and
to that extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders of Securities of that series and
accepted appointment in the manner required by Section 6.8, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of such bona fide Holder and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided in Section 1.6. Each notice shall include the name of
the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
SECTION 6.8 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall
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accept such appointment and which (l) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) 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 as co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
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SECTION 6.9 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 6.10 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of any federal, state, territorial or District of Columbia supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 6.11 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business.
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 all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In
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case any Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities; and in case at that time any of the
Securities shall not have been authenticated, any successor Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply to its successor or successors by merger,
conversion or consolidation.
SECTION 6.13 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon
original issue or upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.6, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of any federal or state supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this
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Section, such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of such Authenticating Agent, shall continue to be an
Authenticating Agent provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or such Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall promptly give notice
of such appointment to all Holders of Securities pursuant to Section 1.6. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Bank of New York,
As Trustee
By
------------------------------
Authenticating Agent
By
------------------------------
Authorized Signatory
If all of the Securities of a series may not be originally issued at
one time, and if the Company has an Affiliate eligible to be appointed as an
Authenticating Agent hereunder or the Trustee does not have an office capable
of authenticating Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not comply with Section 1.2 and need not
be accompanied by an Opinion of Counsel), shall appoint in accordance with this
Section an Authenticating Agent (which if so requested by the Company, shall be
such Affiliate of the Company) having an office in a Place of Payment
designated by the Company with respect to such series of Securities.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that none of the Company or the
Trustee or any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with TIA Section 312, regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
TIA Section 312(b).
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SECTION 7.2 Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first May
15 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit to the Holders of Securities, in the manner and to the
extent provided in TIA Section 313(c), a brief report dated as of such May 15
if required by TIA Section 313(a).
SECTION 7.3 Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of such
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports
required to be filed with respect to compliance by the Company with
the conditions and covenants of this Indenture as may be required from
time to time by such rules and regulations; and
(3) transmit to all Holders, in the manner and to the extent
provided in TIA Section 313(c), within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents
and reports required to be filed by the Company pursuant to
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paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
Delivery of such information, documents and reports to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
ARTICLE VIII
CONSOLIDATION, MERGER,
SALE, LEASE, TRANSFER
OR OTHER DISPOSITION
SECTION 8.1 Company May Consolidate, Etc. Only on Certain Terms.
The Company shall not consolidate or merge with or into any other
Person or sell, convey, transfer, lease, or otherwise dispose of, or permit one
or more of its Subsidiaries to sell, convey, transfer, lease, or otherwise
dispose of, all or substantially all of the property and assets of the Company,
on a consolidated basis, to any Person, unless:
(1) in case the Company shall consolidate with or merge into
any other Person, or sell, convey, transfer, lease or otherwise
dispose of, or permit one or more of its Subsidiaries to sell, convey,
transfer, lease or otherwise dispose of, all or substantially all of
the property and assets of the Company, on a consolidated basis, to
any Person, the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by sale, lease,
transfer or otherwise, such assets (a) shall be a corporation,
partnership or trust, shall be organized and validly existing under
the laws of the United States of America, any state thereof or the
District of Columbia and (b) shall expressly assume,
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by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of and any premium and interest (including
all Additional Amounts, if any, payable pursuant to Section 10.4) on
all the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, sale, lease, transfer or other
disposition and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 8.2 Successor Person Substituted.
Upon any consolidation or merger of the Company with or into any other
Person or any sale, lease, transfer or other disposition of the assets of the
Company substantially as an entirety in accordance with Section 8.1, the
successor Person formed by such consolidation or into which the Company is
merged or to which sale, lease, transfer or other disposition is made shall
assume the obligations of the Company on the Securities and under this
Indenture with the same effect as if such successor Person had been named as
the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities and coupons.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add Events of Default (and if such Events of Default
are to be for the benefit of less than all series of Securities,
stating that such Events of Default are being included solely for the
benefit of such series);provided, however, that in respect of any such
additional Events of Default 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 default or may
limit the remedies available to the Trustee upon such default or may
limit the right of the Holders of a majority in aggregate principal
amount of that or those series of Securities to which such additional
Events of Default apply to waive such default; or
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(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form,provided
that any such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any
material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities pursuant to the requirements of
Section 10.6 or otherwise; or
(7) to establish the form or terms of Securities of any
series and any related coupons as permitted by Sections 2.1 and 3.1;
or
(8) to evidence and provide for the acceptance of appointment
thereunder by a successor Trustee with respect to the Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.8(b);
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
shall not adversely affect the interests of the Holders of Securities
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of any series or any related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture to
the extent necessary to permit or facilitate defeasance and discharge
of any series of Securities, provided such action shall not
adversely affect the interests of the Holders of any Securities
in any material respect.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder.
SECTION 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce
the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or change any obligation
of the Company to pay Additional Amounts pursuant to Section 10.4
(except as contemplated by Section 8.1(1) and permitted by Section
9.1(1), or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a
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declaration of acceleration of the Maturity thereof pursuant to
Section 5.2, or change any Place of Payment where, or the currency in
which, any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the
requirements of Section 15.4 for quorum or voting, or
(3) change any obligation of the Company to maintain an
office or agency in the places and for the purposes specified in
Section 10.2, or
(4) modify any of the provisions of this Section, Section
5.13 or Section 10.10, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder of a
Security or coupon with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 10.10 or
the deletion of this proviso, in accordance with the requirements of
Sections 6.08(b) and 9.1(8).
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
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It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 9.3 Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 6.2) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but 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.
SECTION 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto shall be bound thereby.
SECTION 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act in effect on such date.
SECTION 9.6 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Company, to any such supplemental indenture
may be
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prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
SECTION 9.7 Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 9.2, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 1.6, setting forth in general terms the
substance of such supplemental indenture.
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of the Securities, any coupons appertaining thereto and this Indenture.
Unless otherwise specified as contemplated by Section 3.1 with respect to any
series of Securities, any interest due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender outside the
United States of the several coupons for such interest installments as are
evidenced thereby as they severally mature.
SECTION 10.2 Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities, the
Company will maintain (A) in the Borough of Manhattan, The City of New
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York, an office or agency where any Registered Securities of that
series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange, where notices
and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the
circumstances described below (and not otherwise), (B) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series which is
located outside the United States, an office or agency where Securities of that
series and related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Securities of that
series pursuant to Section 10.4); provided, however, that if the Securities of
that series are listed upon application by the Company on The Stock Exchange of
the United Kingdom and the Republic of Ireland, the Luxembourg Stock Exchange
or any other stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent for the
Securities of that series in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange, and (C) subject to any
laws or regulations applicable thereto in a Place of Payment for that series
located outside the United States an office or agency where any Registered
Securities of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange and where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served.
The Company will give prompt notice to the Trustee and to the Holders
as provided in Sections 1.5 and 1.6, respectively, of the location and any
change in the location, of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency in respect of
any series of Securities or shall fail to furnish the Trustee with the address
thereof, such presentations and surrenders of Securities of that series may be
made and notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of that series and the
related coupons may be presented and surrendered for payment (including payment
of any Additional Amounts payable on Bearer Securities of that series pursuant
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to Section 10.4) at any Paying Agent for such series located outside the United
States, and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to any account
maintained with a bank located in the United States; provided, however, that if
the Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium and interest on any Bearer Security (including any
Additional Amounts payable on Securities of such series pursuant to Section
10.4) shall be made at the office of the Company's Paying Agent in the Borough
of Manhattan, The City of New York, if (but only if) payment in Dollars of the
full amount of such principal, premium, interest or additional amounts, as the
case may be, at all offices or agencies outside the United States maintained
for the purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to
the Trustee and the Holders of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 10.3 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of and any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as
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herein provided and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities it will, prior to each due date of the principal of and
any premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay the principal and any premium or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of and any premium or interest on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal of and any premium or interest on the
Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee,
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such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of and any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal and any premium or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
or any coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money and all
liability of the Company as trustee thereof shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in an Authorized Newspaper in each Place of Payment, notice that such
money remains unclaimed and that after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 10.4 Additional Amounts.
If any Securities of a series provide for the payment of additional
amounts to any Holder who is not a United States person in respect of any tax,
assessment or governmental charge ("Additional Amounts"), the Company will pay
to the Holder of any Security of such series or any coupon appertaining thereto
such Additional Amounts as may be specified as contemplated by Section 3.1.
The supplemental indenture relating to any such Securities shall provide the
extent to which Additional Amounts are or will be payable in respect of such
Securities.
If the Securities of a series provide for the payment of Additional
Amounts, the Company 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 any premium 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
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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 Date 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 and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series or any related
coupons who are Non-United States Persons 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 or coupons and the
Company will pay to the Trustee or such Paying Agent the Additional Amounts
required by this Section. The Company 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 willful misconduct on their
part arising out of or in connection with actions taken or omitted by any of
them in reliance on any Officers' Certificate furnished pursuant to this
Section.
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SECTION 10.5 Existence.
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 10.6 Limitation on Liens.
The Company will not, and will not permit any Significant Subsidiary
to, incur, create, issue, assume, guarantee or otherwise become liable for any
Debt secured by any Lien on any asset now owned or hereafter acquired, without
in any such case effectively providing, concurrently with the issuance,
assumption or guarantee of such Debt, that the Securities (together with, if the
Company shall so determine, any other indebtedness of or guarantee by the
Company or such Significant Subsidiary ranking equally with the Securities then
outstanding and existing or thereafter created) shall be secured equally and
ratably with (or prior to) such Debt so long as such Debt shall be secured;
provided, however, that the foregoing restriction shall not apply to:
(1) Liens on any property or assets of the Company or any
Subsidiary existing as of the date of this Indenture;
(2) Liens on any property or assets of the Company or any
Subsidiary created by Subsidiaries of the Company to secure
indebtedness of such Subsidiaries to the Company or to one or more
other Subsidiaries of the Company;
(3) Liens on any property or assets of the Company or any
Subsidiary affecting property or assets of a Person existing at the
time it becomes a Subsidiary of the Company or at the time it merges
into or consolidates with the Company or a Subsidiary of the Company
or at the time of a sale, lease or other disposition of all or sub-
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stantially all of the properties or assets of such Person to the
Company or its Subsidiaries;
(4) Liens on any property or assets existing at the time of
the acquisition thereof or incurred to secure payment of all or a part
of the purchase price thereof, including the expenses incurred in
connection therewith, or to secure Debt incurred prior to, at the time
of, or within one year after the acquisition thereof for the purpose
of financing all or a part of the purchase price thereof, including
the expenses incurred in connection therewith;
(5) Liens on any property to secure all or part of
the cost of improvements or construction thereon or Debt incurred to
provide funds for such purpose in a principal amount not exceeding the
cost of such improvements or construction, including the expenses
incurred in connection therewith;
(6) Liens on shares of stock, Debt or other securities of a
Person that is not a Subsidiary;
(7) Liens relating to accounts receivable of the Company or
any of its Subsidiaries which have been sold, assigned or otherwise
transferred to another Person in a transaction classified as a sale of
accounts receivable in accordance with generally accepted accounting
principles (to the extent the sale by the Company or the applicable
Subsidiary is deemed to give rise to a Lien in favor of the purchaser
thereof in such accounts receivable or the proceeds thereof);
(8) Liens created pursuant to applications or reimbursement
agreements pertaining to commercial letters of credit which encumber
only the goods, or documents of title covering the goods, that are
sold or shipped in the transaction for which such letters of credit
were issued;
(9) Liens incurred by the Company after the date of this
Agreement in connection with industrial revenue bond financing for
facilities
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(including pollution control equipment) to be used by the Company or
any Subsidiary;
(10) Liens in favor of governmental bodies to secure
progress, advance or other payments;
(11) other Liens arising in connection with Debt of
the Company and its Subsidiaries in an aggregate principal amount for
the Company and its Subsidiaries not exceeding 10% of the Consolidated
Net Assets of the Company at the time such Lien is issued, created or
assumed; and
(12) any extension, renewal or replacement (or successive
extensions, renewals or replacements) of any Lien referred to in the
foregoing clauses (1) through (11) inclusive, or of any Debt
secured thereby, provided that the principal amount of Debt
secured thereby shall not exceed the greater of (A) the principal
amount of Debt so secured at the time of such extension,
renewal or replacement and (B) the principal amount of Debt
so secured at the time the Lien was issued, created, assumed or
otherwise permitted, plus in either of (A) or (B) the expenses of the
Company and its Subsidiaries (including any premium) incurred in
connection with any such extension, renewal or replacement, and
provided further that such extension, renewal or replacement Lien
shall be limited to all or part of substantially the same property
that secured the Lien extended, renewed or replaced (plus
improvements on such property).
SECTION 10.7 Limitations on Sales and Leaseback Transactions.
The Company will not, nor will it permit a Significant Subsidiary to,
enter into any arrangement on or after the date of this Indenture, or such
other date as may be specified in any Prospectus Supplement for an applicable
series of Securities issued pursuant to this Indenture, with any Person (other
than the Company or another Subsidiary) providing for the leasing by the
Company or any such Significant Subsidiary of any Principal Property (except a
lease for a temporary period, including renewals, of not more than 24 months by
the end of which it is intended that the use of such property by the lessee
will be discontinued)
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except (a) where the Company or such Subsidiary would be entitled to incur
Debt secured by a Lien on the property to be leased in an amount equal to the
Attributable Debt with respect to such Sale and Leaseback Transaction without
equally and ratably securing the Securities, (b) where such Sale and Leaseback
Transaction is entered into in respect of property acquired by the Company or a
Subsidiary within 24 months of such acquisition, (c) where the Sale and
Leaseback Transaction is entered into by the Company or a Subsidiary in respect
of property within 24 months of the Company's or a Subsidiary's acquisition of,
or merger with, the Person owning such property, (d) where the Company within
120 days of entering into the Sale and Leaseback Transaction applies to the
retirement of Securities of any series an amount equal to the greater of (i)
the net proceeds of the sale of the property leased pursuant to such
Transaction or (ii) the fair market value of the property so leased.
SECTION 10.8 Statement by Officers as to Default; Notice of Default
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the
terms, provisions and conditions of this Indenture (without regard to notice
requirements or periods of grace), and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they
may have knowledge.
The Company shall file with the Trustee written notice of the
occurrence of any Default or Event of Default within 10 Business Days of its
becoming aware of any such Default or Event of Default.
SECTION 10.9 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 10.6 or 10.7, inclusive,
with respect to the Securities of any series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, 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
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expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
SECTION 10.10 Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year a written notice specifying the amount of original issue discount
(including daily rates and accural records) accured on Outstanding Securities
as of the end of such year.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any
series) in accordance with this Article.
SECTION 11.2 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by an Officers' Certificate. In the case of any redemption at the
election of the Company of the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series
to be redeemed. In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (ii) pursuant to an election of
the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or condition.
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SECTION 11.3 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection, for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series. If so specified in the
Securities of a series, partial redemptions must be in an amount not less than
$1,000,000 principal amount of Securities.
If any Security convertible into another Security selected for partial
redemption is converted in part before termination of the conversion right with
respect to the portion of the Security so selected, the converted portion of
such Security shall be deemed (so far as may be) to be the portion selected for
redemption. Securities which have been converted during a selection of
Securities to be redeemed shall be treated by the Trustee as Outstanding for
the purpose of such selection. In any case where more than one Security is
registered in the same name, the Trustee in its discretion may treat the
aggregate principal amount so registered as if it were represented by one
Security.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
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SECTION 11.4 Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
1.6 to the Holders of Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP numbers) and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed, and a statement to the effect that on or after the
Redemption Date upon surrender of such Security a new Security in the
principal amount equal to the unredeemed portion will be issued;
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date;
(5) the place or places where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto,
if any maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price;
(6) that the redemption is for a sinking fund, if such is the
case; and
(7) if applicable, the conversion price, the date on which
the right to convert the Securities to be redeemed will terminate and
the place or places where such Securities may be surrendered for
conversion.
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A notice of redemption given or published as contemplated by Section
1.6 need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 11.5 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 11.6 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall on the Redemption Date become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price together with accrued interest to
the Redemption Date; provided, however, that installments of interest on Bearer
Securities the Stated Maturity of which is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 10.2) and, unless otherwise specified
as contemplated by Section 3.1, only upon presentation and surrender of coupons
for such interest; and provided, further, that, unless otherwise specified as
contemplated by Section 3.1, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities or one or more Predecessor
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Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 10.2) and unless otherwise specified as contemplated by
Section 3.1 only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 11.7 Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and make available for
delivery to the Holder of such Security without service charge, a new
Registered Security or Securities of the same series and of like tenor of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
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ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such series.
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". Unless otherwise provided for by the terms of Securities
of any series, the cash amount of any sinking fund payment shall be subject to
reduction as provided in Section 12.2. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 12.2 Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any
part of any sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities, as provided for
by the terms of such series; provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
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SECTION 12.3 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 12.2 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 45 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.3 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 11.4. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 11.6 and 11.7.
ARTICLE XIII
REPAYMENT AT OPTION OF HOLDERS
SECTION 13.1 Applicability of Article.
Repayment of Securities of any series before their Stated Maturity at
the option of Holders thereof shall be made in accordance with the terms of
such Securities and (except as otherwise specified as contemplated by Section
3.1 for Securities of any series) in accordance with this Article.
SECTION 13.2 Repayment of Securities.
Securities of any series subject to repayment in whole or in part at
the option of the Holders thereof will, unless otherwise provided in the terms
of such Securities, be repaid at a price equal to the principal amount thereof,
together with interest, if any, thereon accrued to the Repayment Date specified
in or pursuant to the terms of such Securities. The Company covenants that on
or before the Repayment Date it will deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section
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10.3) an amount of money in the Currency in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 3.1 for the
Securities of such series and except, if applicable, as provided in Sections
3.12(b), 3.12(d) and 3.12(e) sufficient to pay the principal (or, if so
provided by the terms of the Securities of any series, a percentage of the
principal) of, and (except if the Repayment Date shall be an Interest Payment
Date) accrued interest on, all the Securities or portions thereof, as the case
may be, to be repaid on such date.
SECTION 13.3 Exercise of Option.
Securities of any series subject to repayment at the option of the
Holders thereof will contain an "Option to Elect Repayment" form on the reverse
of such Securities. To be repaid at the option of the Holder, any Security so
providing for such repayment, with the "Option to Elect Repayment" form on the
reverse of such Security duly completed by the Holder (or by the Holder's
attorney duly authorized in writing), must be received by the Company at the
Place of Payment therefor specified in the terms of such Security (or at such
other place or places of which the Company shall from time to time notify the
Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be
provided by the terms of any Security providing for repayment at the option of
the Holder thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Company.
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SECTION 13.4 When Securities Presented for Repayment Become Due and
Payable.
If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by
the Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 10.2) and, unless
otherwise specified pursuant to Section 3.1, only upon presentation and
surrender of such coupons; and provided further that, in the case of
Registered Securities, installments of interest, if any, the Stated Maturity of
which is on or prior to the Repayment Date shall be payable to the Holders of
such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 3.7.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 13.2 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by
the Company and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to the
Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made as
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provided in the preceding sentence, such Holder shall be entitled to receive
the amount so deducted; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 10.2) and, unless otherwise specified
as contemplated by Section 3.1, only upon presentation and surrender of those
coupons.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount (together
with interest, if any, thereon accrued to such Repayment Date) shall, until
paid, bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 13.5 Securities Repaid in Part.
Upon surrender of any Registered Security which is to be repaid in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge and at the
expense of the Company, a new Registered Security or Securities of the same
series, of any authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the principal of
such Security so surrendered which is not to be repaid.
ARTICLE XIV
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 14.1 Company's Option to Effect Defeasance or Covenant Defeasance.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, the provisions of this Article XIV shall apply to
each series of Securities, and the Company may, at its option, effect
defeasance of the Securities of or within a series under Section 14.2, or
covenant defeasance of or within a series under Section 14.3 in accordance with
the terms of such Securities and in accordance with this Article. The rights
of the Company under this Article XIV shall be in addition to its rights under
Article IV.
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SECTION 14.2 Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be deemed to have been discharged from its obligations with respect to such
Outstanding Securities and any related coupons on the date the conditions set
forth in Section 14.4 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by such Outstanding
Securities and any related coupons, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 14.5 and the other Sections of
this Indenture referred to in (A) and (B) below, and to have satisfied all of
its other obligations under such Securities and any related coupons and this
Indenture insofar as such Securities and any related coupons are concerned (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any related coupons to receive, solely from the
trust fund described in Section 14.4 and as more fully set forth in such
Section, payments in respect of the principal of (and premium, if any, on) and
interest on such Securities and any related coupons when such payments are due,
(B) the Company's obligations with respect to such Securities under Sections
3.4, 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional
Amounts, if any, on such Securities as contemplated by Section 10.4, (C) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (D)
this Article XIV. Subject to compliance with this Article XIV, the Company may
exercise its option under this Section 14.2 notwithstanding the prior exercise
of its option under Section 14.3 with respect to such Securities and any
related coupons.
SECTION 14.3 Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be released from its obligations under Section 8.1 and Sections 10.6 through
10.9, and, if specified pursuant to Section 3.1, its obligations under any
other covenant, with respect to
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such Outstanding Securities and any related coupons (hereinafter, "covenant
defeasance"), and such Securities and any related coupons shall thereafter be
deemed not to be "Outstanding" for the purposes of any direction, waiver,
consent or declaration or Act of Holders (and the consequences of any thereof)
in connection with such covenants, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to such Outstanding Securities and
any related coupons, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of reference in any such covenant to
any other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 5.1(4) or
Section 5.1(7) or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and such Securities and any related
coupons shall be unaffected thereby.
SECTION 14.4 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
14.2 or Section 14.3 to any Outstanding Securities of or within a series and
any related coupons:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 6.7 who shall agree to comply with the provisions of this Article XIV
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 benefit of the Holders of such Securities and any related coupons, (A)
an amount (in such Currency in which such Securities and any related coupons
are then specified as payable at Stated Maturity), or (B) Government
Obligations applicable to such Securities (determined on the basis of the
Currency in which such Securities are then specified as payable at Stated
Maturity) 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 of principal (including any premium) and
interest, if any, under such Securities
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and any related coupons, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the Trustee
(or other qualifying trustee) to pay and discharge, (i) the principal of (and
premium, if any) and interest on such Outstanding Securities and any related
coupons on the Stated Maturity (or Redemption Date, if applicable) of such
principal (and premium, if any) or installment of interest and (ii) any
mandatory sinking fund payments or analogous payments applicable to such
Outstanding Securities and any related coupons on the day on which such
payments are due and payable in accordance with the terms of this Indenture and
of such Securities and any related coupons; provided that the Trustee shall
have been irrevocably instructed to apply such money or the proceeds of such
Government Obligations to said payments with respect to such Securities and any
related coupons. Before such a deposit, the Company may give to the Trustee,
in accordance with Section 11.2 hereof, a notice of its election to redeem all
or any portion of such Outstanding Securities at a future date in accordance
with the terms of the Securities of such series and Article XI hereof,
which notice shall be irrevocable. Such irrevocable redemption notice, if
given, shall be given effect in applying the foregoing.
(2) No Default or Event of Default with respect to such Securities
or any related coupons shall have occurred and be continuing on the date of
such deposit or, insofar as paragraphs (5) and (6) of Section 5.1 are
concerned, at any time during the period ending on the 91st day after the date
of such deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument evidencing indebtedness of the Company
to which the Company is a party or by which it is bound.
(4) In the case of an election under Section 14.2, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the United States
Internal
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Revenue Service a ruling, or (y) since the date of execution of this Indenture,
there has been a change in the applicable federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm that, the
Holders of such Outstanding Securities and any related coupons will not
recognize income, gain or loss for federal income tax purposes as a result of
such defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
defeasance had not occurred.
(5) In the case of an election under Section 14.3, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of such Outstanding Securities and any related coupons will not
recognize income, gain or loss for federal income tax purposes as a result of
such covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such covenant defeasance had not occurred.
(6) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations in connection
therewith pursuant to Section 3.1.
(7) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 14.2 or
the covenant defeasance under Section 14.3 (as the case may be) have been
complied with.
SECTION 14.5 Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.3, all
money and Government Obligations (or other property as may be provided pursuant
to Section 3.1) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee - collectively for purposes of this Section 14.5, the
"Trustee") pursuant to Section 14.4 in respect of such Outstanding Securities
and any related coupons shall be held in trust and applied by
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the Trustee, in accordance with the provisions of such Securities and any
related coupons and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities and any related
coupons of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest, but such money need not be segregated from other
funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 3.1, if, after a deposit referred to in Section 14.4(l) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 3.12(b) or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 14.4(l) has been made in respect of such Security, or (b) a
Conversion Event occurs as contemplated in Section 3.12(d) or 3.12(e) or by the
terms of any Security in respect of which the deposit pursuant to Section
14.4(l) has been made, the indebtedness represented by such Security and any
related coupons shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any), and
interest, if any, on such Security as they become due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result
of such election or Conversion Event based on the applicable Market Exchange
Rate for such Currency in effect on the third Business Day prior to each
payment date, except, with respect to a Conversion Event, for such Currency in
effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 14.4 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 such Outstanding Securities and any related
coupons.
Anything in this Article XIV to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company
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from time to time upon Company Request any money or Government Obligations (or
other property and any proceeds therefrom) held by it as provided in Section
14.4 that, 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 an equivalent defeasance or covenant defeasance, as
applicable, in accordance with this Article.
SECTION 14.6 Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 14.5 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such
Securities and any related coupons shall be revived and reinstated as though no
deposit had occurred pursuant to Section 14.2 or 14.3, as the case may be,
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 14.5; provided, however, that if the Company
makes any payment of principal of (or premium, if any, on) or interest on any
such Security or any related coupon following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities and any related coupons to receive such payment from the money
held by the Trustee or Paying Agent.
ARTICLE XV
MEETINGS OF HOLDERS OF SECURITIES
SECTION 15.1 Purposes for Which Meetings May be Called.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
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SECTION 15.2 Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 15.1, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or in London as the Trustee shall determine. Notice of every meeting of
Holders of Securities of any series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 1.6, not less than
21 nor more than 180 days prior to the date fixed for the meeting (or, in the
case of a meeting of Holders with respect to Securities of a series all or part
of which are represented by a Book-Entry Security, not less than 20 nor more
than 40 days).
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified
in Section 15.1, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have made
the first publication of the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as the case may be, may determine
the time and the place in the Borough of Manhattan, The City of New York or in
London for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section.
SECTION 15.3 Persons Entitled to Vote at Meetings.
Upon the calling of a meeting of Holders with respect to the
Securities of a series all or part of which are represented by a Book-Entry
Security, a record date shall be established for determining Holders of
Outstanding Securities of such series entitled to vote at such meeting, which
record date shall be the close of business on the day the notice of the meeting
of Holders is given in accordance with Section 15.2. The Holders on such
record
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date, and their designated proxies, and only such Persons, shall be entitled to
vote at any meeting of Holders.
To be entitled to vote at any meeting of Holders of Securities of any
series contemplated by Section 15.1, a Person shall be (a) a Holder of one or
more Securities or (b) a Person appointed by an instrument in writing as proxy
by a Holder of one or more Securities; provided, however, that in the case of
any meeting of Holders with respect to the Securities of a series all or part
of which are represented by a Book-Entry Security, only Holders, or their
designated proxies, of record on the record date established pursuant to this
Section 15.3 shall be entitled to vote at such meeting. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders shall be
the Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 15.4 Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series contemplated by Section 15.1; provided,
however, that if any action is to be taken at such meeting with respect to a
consent or waiver which this Indenture expressly provides may be given by the
Holders of not less than a specified percentage in principal amount of the
Outstanding Securities of a series, the Persons entitled to vote such specified
percentage in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 15.2 (a), except that such notice need be
given only once not less than five days
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prior to the date on which the meeting is scheduled to be reconvened. Notice
of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum. Notwithstanding the
foregoing, no meeting of Holders with respect to Securities of any series which
is represented in whole or in part by a Book-Entry Security shall be adjourned
to a date more than 90 days after the record date for such meeting unless the
Trustee shall send out a new notice of meeting and establish, in accordance
with Section 15.3, a new record date for Holders entitled to vote at such
meeting.
Except as limited by the proviso to Section 9.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 9.2, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other Act which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the
Holders of such specified percentage in principal amount of the Outstanding
Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 15.4, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act that this Indenture expressly provides may be given or
taken by the Holders of a specified percentage in principal amount of all
Outstanding
122
<PAGE> 130
Securities affected thereby, or of the Holders of such series and one or more
additional series:
(i) there shall be no minimum quorum requirement for such meeting;
and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other Act shall be taken in
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been given or
taken under this Indenture.
SECTION 15.5 Determination of Voting Rights; Conduct and Adjournment Of
Meetings.
(a) Notwithstanding any provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting
of Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 1.4 and the appointment of any proxy shall be proved in the manner
specified in Section 1.4 or by having the signature of the person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized
by Section 1.4 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof specified in
Section 1.4 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 15.2(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent
123
<PAGE> 131
chairman and a permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by such Holder
(determined as specified in the definition of "Outstanding" in Section 1.1);
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have
no right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 15.2 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 15.6 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
124
<PAGE> 132
showing that said notice was given as provided in Section 15.2 and, if
applicable, Section 15.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
_______________
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
125
<PAGE> 133
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 of the day and year first above written.
IBP, inc.
By
----------------------------
Name:
Title:
The Bank of New York,
as Trustee
By
---------------------------
Name:
Title:
126
<PAGE> 1
EXHIBIT 12
IBP, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS, EXCEPT RATIO DATA)
<TABLE>
<CAPTION>
THIRTY-NINE WEEKS ENDED FISCAL YEARS ENDED
---------------------------- --------------------------------------------------------------------
SEPTEMBER 30, SEPTEMBER 24, DECEMBER 31, DECEMBER 25, DECEMBER 26, DECEMBER 28, DECEMBER 29,
1995 1994 1994(2) 1993(3) 1992 1991 1990(4)
------------- ------------- ------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings before income
taxes.................. $ 365,671 $ 173,071 $308,889 $131,257 $108,616 $ 2,253 $ 75,727
Fixed charges
Interest expense..... 31,218 33,154 45,124 45,838 54,683 61,344 59,110
Interest portion of
operating lease/
rent expense(1).... 3,018 2,536 3,440 3,360 3,328 3,893 2,495
Total fixed
charges............ 34,236 35,690 48,564 49,198 58,011 65,237 61,605
Earnings before fixed
charges................ $ 399,907 $ 208,761 $357,453 $180,455 $166,627 $ 67,490 $137,332
Ratio of earnings to
fixed charges.......... 11.68x 5.85x 7.36x 3.67x 2.87x 1.03x 2.23x
</TABLE>
- ---------------
(1) Represents one-third of operating lease/rent expense, which the Company's
management believes to be representative of the interest portion of
operating lease/rent expense.
(2) Fiscal year consisted of 53 weeks.
(3) The earnings set forth for 1993 do not reflect the effect of the Company's
change in its method of accounting for income taxes in such year.
(4) The earnings set forth for 1990 do not reflect the effect of the Company's
extraordinary item relating to the premium paid by the Company in such year
in connection with its prepayment of certain indebtedness.
<PAGE> 1
EXHIBIT 23(A)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
TO THE BOARD OF DIRECTORS OF IBP, INC.
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
February 3, 1995, which appears on page 23 of the 1995 Annual Report to
Shareholders of IBP, inc., which is incorporated by reference in IBP, inc.'s
Annual Report on Form 10-K for the year ended December 31, 1994. We also consent
to the incorporation by reference of our report on the Financial Statement
Schedules, which appears on page 15 of such Annual Report on Form 10-K. We also
consent to the references to us under the heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
Chicago, Illinois
November 20, 1995
<PAGE> 1
CONFORMED COPY
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
IBP, inc.
(Exact name of obligor as specified in its charter)
Delaware 42-0838666
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
IBP Avenue
Post Office Box 515
Dakota City, Nebraska 68731
(Address of principal executive offices) (Zip code)
______________________
Debt Securities
(Title of the indenture securities)
===============================================================================
<PAGE> 2
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such affilia-
tion.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of the
Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
-2-
<PAGE> 3
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
- 3 -
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 17th day of November, 1995.
THE BANK OF NEW YORK
By: /S/ VIVIAN GEORGES
Name: VIVIAN GEORGES
Title: ASSISTANT VICE PRESIDENT
-4-
<PAGE> 5
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
June 30, 1995, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions
of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 3,025,419
Interest-bearing balances .......... 881,413
Securities:
Held-to-maturity securities ........ 1,242,368
Available-for-sale securities ...... 1,774,079
Federal funds sold in domestic
offices of the bank ................ 5,503,445
Securities purchased under agree-
ments to resell .................... 200,634
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................26,599,533
LESS: Allowance for loan and
lease losses ..............516,283
Loans and leases, net of unearned
income and allowance 26,083,250
Assets held in trading accounts ...... 1,455,639
Premises and fixed assets (including
capitalized leases) ................ 612,547
Other real estate owned .............. 79,667
Investments in unconsolidated
subsidiaries and associated
companies .......................... 198,737
Customers' liability to this bank on
acceptances outstanding ............ 1,111,464
Intangible assets .................... 105,263
Other assets ......................... 1,237,264
Total assets ......................... $43,511,189
LIABILITIES
Deposits:
In domestic offices ................ $19,233,885
Noninterest-bearing .......7,677,954
Interest-bearing .........11,555,931
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 12,641,676
Noninterest-bearing ..........72,479
Interest-bearing .........12,569,197
<PAGE> 6
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,747,659
Securities sold under agreements
to repurchase .................... 73,553
Demand notes issued to the U.S.
Treasury ........................... 300,000
Trading liabilities .................. 738,317
Other borrowed money:
With original maturity of one year
or less .......................... 1,586,443
With original maturity of more than
one year ......................... 220,877
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,113,102
Subordinated notes and debentures .... 1,053,860
Other liabilities .................... 1,489,252
Total liabilities .................... 40,198,624
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,849,221
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 662)
Cumulative foreign currency transla-
tion adjustments .................. ( 3,944)
Total equity capital ................ 3,312,565
Total liabilities and equity
capital ........................... $43,511,189
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and
to the best of our knowledge and belief has been prepared in
conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true and correct.
J. Carter Bacot
Thomas A. Renyi Directors
Samuel F. Chevalier
