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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 30, 1999
JOSTENS, INC.
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(Exact name of registrant as specified in its charter)
Minnesota 1-5064 41-0343440
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(State or other jurisdiction (Commission file number) (IRS employer
of incorporation) identification No.)
5501 Norman Center Drive, Minneapolis, Minnesota 55437
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(Address of principal executive offices)
Registrant's telephone number, including area code: (612) 830-3300
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Not Applicable
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(Former name or former address, if changed since last report)
Page 1 of 3 Pages
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Item 5. Other Events.
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Jostens, Inc. (the "Company") has entered into a Distribution Agreement,
dated August 30, 1999, with Credit Suisse First Boston Corporation, Banc One
Capital Markets Inc. and J.P. Morgan Securities Inc. for the public offering of
up to $200,000,000 aggregate principal amount of its Medium-Term Notes, Series A
(the "Notes") to be issued pursuant to the Indenture, dated August 30, 1999 (the
"Indenture"), between the Company and Norwest Bank Minnesota, National
Association, as Trustee, and the Officers' Certificate and Company Order, dated
August 30, 1999, pursuant to Sections 201, 301 and 303 of the Indenture. The
Notes have been registered under the Securities Act of 1933, as amended, by
Registration Statement on Form S-3 (Registration No. 333-83649).
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
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(a) - (b) Not applicable.
(c) Exhibits
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1.1 Distribution Agreement, dated August 30, 1999, among the
Company, Credit Suisse First Boston Corporation, Banc One
Capital Markets Inc. and J.P. Morgan Securities Inc., as
Distributors.
4.1 Indenture, dated August 30, 1999 between the Company and
Norwest Bank Minnesota, National Association, as Trustee
4.2 Officers' Certificate and Company Order, dated August 30,
1999 pursuant to Sections 201, 301 and 303 of the Indenture
4.3 Specimens of the Notes
(a) Global Fixed Rate Note;
(b) Global Floating Rate Note;
(c) Global Original Issue Discount Zero Coupon Note; and
(d) Global Original Issue Discount Fixed Rate Note.
Page 2 of 3 Pages
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: August 30, 1999
JOSTENS, INC.
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By: /s/ William N. Priesmeyer
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William N. Priesmeyer
Senior Vice President and
Chief Financial Officer
Page 3 of 3 Pages
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INDEX TO EXHIBITS
Exhibit Number Document Description
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1.1 Distribution Agreement, dated August 30, 1999,
among the Company, Credit Suisse First Boston
Corporation, Banc One Capital Markets Inc. and
J.P. Morgan Securities Inc., as Distributors.
4.1 Indenture, dated August 30, 1999 between the
Company and Norwest Bank Minnesota, National
Association, as Trustee
4.2 Officers' Certificate and Company Order, dated
August 30, 1999 pursuant to Sections 201, 301 and
303 of the Indenture
4.3 Specimens of the Notes
(a) Global Fixed Rate Note;
(b) Global Floating Rate Note;
(c) Global Original Issue Discount Zero Coupon
Note; and
(d) Global Original Issue Discount Fixed Rate
Note.
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EXHIBIT 1.1
$200,000,000
Jostens, Inc.
Medium-Term Notes
DISTRIBUTION AGREEMENT
August 30, 1999
Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, NY 10010-3629
Banc One Capital Markets, Inc.
One First National Plaza
Chicago, IL 60670
J. P. Morgan Securities Inc.
60 Wall Street
New York, NY 10260
Ladies and Gentlemen:
1. Introduction. Jostens, Inc., a Minnesota corporation (the "Issuer"),
confirms its agreement with each of you (individually, a "Distributor" and
collectively, the "Distributors") with respect to the issue and sale from time
to time by the Issuer of its medium-term notes registered under the registration
statement referred to in Section 2(a) (any such medium-term notes being
hereinafter referred to as the "Securities," which expression shall, if the
context so admits, include any permanent global Security). Securities may be
offered and sold pursuant to Section 3 of this Agreement in an aggregate amount
not to exceed the amount of Registered Securities (as defined in Section 2(a)
hereof) registered pursuant to such registration statement reduced by the
aggregate amount of any other Registered Securities sold otherwise than pursuant
to Section 3 of this Agreement. The Securities will be issued under an
indenture, dated as of August 30, 1999 (the "Indenture"), between the Issuer and
Norwest Bank Minnesota, N.A., as trustee (the "Trustee").
The Securities shall have the terms described in the Prospectus referred to
in Section 2(a) as it may be amended or supplemented from time to time,
including any supplement to the Prospectus that sets forth only the terms of a
particular issue of the Securities (a "Pricing Supplement"). Securities will be
issued, and the terms thereof established, from time to time by the Issuer in
accordance with the Indenture and the Procedures (as defined in Section 3(d)
hereof).
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2. Representations and Warranties of the Issuer. The Issuer represents and
warrants to, and agrees with, each Distributor as follows:
(a) A registration statement (No. 333-83649), including a prospectus,
relating to $150,000,000 aggregate principal amount of debt securities of
the Issuer, and a registration statement (No. 33-40233) relating to
$50,000,000 aggregate principal amount of debt securities of the Issuer,
including the Securities (the "Registered Securities") (including a
prospectus which, as supplemented from time to time, shall be used in
connection with sales of the Securities) have been filed with the
Securities and Exchange Commission (the "Commission") and have been
declared effective under the Securities Act of 1933, as amended (the
"Act"). Such registration statements, as amended as of the Closing Date (as
defined in Section 3(e) hereof), are hereinafter collectively referred to
as the "Registration Statement," and the prospectus included in
registration statement no. 333-83649 as supplemented so as generally to
describe the Securities and the terms of the offering of the Securities,
including all material incorporated by reference therein, is hereinafter
referred to as the "Prospectus." Any reference in this Agreement to
amending or supplementing the Prospectus shall be deemed to include the
filing of materials incorporated by reference in the Prospectus after the
Closing Date and any reference in this Agreement to any amendment or
supplement to the Prospectus shall be deemed to include any such materials
incorporated by reference in the Prospectus after the Closing Date.
(b) On the effective date of each part of the Registration Statement,
such Registration Statement conformed in all material respects to the
requirements of the Act, the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules and regulations of the Commission
("Rules and Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and on
the Closing Date, and at each of the times of acceptance and of delivery
referred to in Section 6(a) hereof and at each of the times of amendment or
supplementing referred to in Section 6(b) hereof (the Closing Date and each
such time being herein sometimes referred to as a "Representation Date"),
each part of the Registration Statement and the Prospectus as then amended
or supplemented will conform in all material respects to the requirements
of the Act, the Trust Indenture Act and the Rules and Regulations, and
neither of such documents will include any untrue statement of a material
fact or will omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, except that the
foregoing does not apply to statements in or omissions from any of such
documents based upon written information furnished to the Issuer by any
Distributor specifically for use therein.
(c) The Issuer has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Minnesota, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; and the Issuer is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification except where the
failure to so qualify would not have a material adverse effect on the
business, financial condition, results of operations or properties of the
Issuer and its subsidiaries taken as a whole (a "Material
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Adverse Effect").
(d) Each subsidiary of the Issuer has been duly incorporated and is an
existing corporation in good standing under the laws of the jurisdiction of
its incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus; and
each subsidiary of the Issuer is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires such
qualification except where the failure to so qualify would not have a
Material Adverse Effect; all of the issued and outstanding capital stock of
each subsidiary of the Issuer has been duly authorized and validly issued
and is fully paid and nonassessable; and the capital stock of each
subsidiary owned by the Issuer, directly or through subsidiaries, is owned
free from liens, encumbrances and defects.
(e) The Indenture has been duly authorized, executed and delivered by
the Issuer and duly qualified under the Trust Indenture Act and constitutes
a valid and legally binding obligation of the Issuer enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles (regardless of whether enforceability is considered in a
proceeding at law or in equity); the Securities have been duly authorized,
and when the Securities have been delivered and paid for pursuant to this
Agreement, the Securities will have been duly executed, authenticated,
issued and delivered and will conform in all material respects to the
description thereof contained in the Prospectus and will constitute valid
and legally binding obligations of the Issuer enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles
(regardless of whether enforceability is considered in a proceeding at law
or in equity).
(f) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance and sale of the Securities by the Issuer,
except such as have been obtained and made under the Act and the Trust
Indenture Act and such as may be required under state securities or Blue
Sky laws.
(g) The execution, delivery and performance of the Indenture and this
Agreement do not, and the completion, execution and issuance of each
particular Security in accordance with the Indenture, the sale by the
Issuer of such Security in accordance with this Agreement and compliance
with the terms and provisions thereof will not, result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having jurisdiction over
the Issuer or any subsidiary of the Issuer or any of their properties, or
any agreement or instrument to which the Issuer or any such subsidiary is a
party or by which the Issuer or any such subsidiary is bound or to which
any of the properties of the Issuer or any such subsidiary is subject and
which is material to the issuer and its subsidiaries taken as a whole, or
the
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charter or by-laws of the Issuer or any such subsidiary, and the Issuer has
full power and authority to authorize, issue and sell the Securities as
contemplated by this Agreement.
(h) This Agreement (including any agreement with respect to the
offering and sale of particular Securities as contemplated by Section 3)
has been duly authorized, executed and delivered by the Issuer.
(i) Except as disclosed in the Prospectus, the Issuer and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and
except as disclosed in the Prospectus, the Issuer and its subsidiaries hold
any leased real or personal property under valid and enforceable leases
with no exceptions that would materially interfere with the use made or to
be made thereof by them.
(j) The Issuer and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Issuer or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(k) No labor dispute with the employees of the Issuer or any
subsidiary exists or, to the knowledge of the Issuer, is imminent that is
reasonably likely to result in a Material Adverse Effect.
(l) The Issuer and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Issuer or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(m) Except as disclosed in the Prospectus, neither the Issuer nor any
of its subsidiaries is in violation of any statute, any rule, regulation,
decision or order of any governmental agency or body or any court, domestic
or foreign, relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the environment
or human exposure to hazardous or toxic substances (collectively,
"environmental laws"), to the knowledge of the Issuer owns or operates any
real property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or contamination
pursuant to any environmental laws, or is subject to any claim relating to
any environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect; and
the Issuer is not aware of any pending investigation which might lead to
such a claim.
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(n) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Issuer, any of its
subsidiaries or any of their respective properties that, if determined
adversely to the Issuer or any of its subsidiaries, would individually or
in the aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Issuer to perform its obligations under
the Indenture or this Agreement, or which are otherwise material in the
context of the sale of the Securities; and, to the Issuer's knowledge, no
such actions, suits or proceedings are threatened or contemplated.
(o) The financial statements included or incorporated by reference in
the Registration Statement and Prospectus present fairly the financial
position of the Issuer and its consolidated subsidiaries as of the dates
shown and their results of operations and cash flows for the periods shown,
and such financial statements have been prepared in conformity with U.S.
generally accepted accounting principles applied on a consistent basis; and
the schedules included in the Registration Statement present fairly the
information required to be stated therein.
(p) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in
the financial condition, business, properties or results of operations of
the Issuer and its subsidiaries taken as a whole.
(q) The Issuer is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company," as
defined in the Investment Company Act of 1940.
(r) Neither the Issuer nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes, and the Issuer
agrees to comply with such Section if prior to the completion of the
distribution of the Securities it commences doing such business.
(s) Immediately after any sale of Securities by the Issuer hereunder
or under any Terms Agreement, the aggregate amount of Securities which
shall have been issued and sold by the Issuer hereunder or under any Terms
Agreement and of any debt securities of the Issuer (other than such
Securities) that shall have been issued and sold pursuant to the
Registration Statement will not exceed the amount of debt securities
registered under the Registration Statement.
3. Appointment as Distributors; Agreement of Distributors; Solicitations.
(a) (i) Subject to the terms and conditions stated herein, the Issuer
hereby appoints each of the Distributors as the agents of the Issuer for
the purpose of soliciting or receiving offers to purchase the Securities to
be issued by the Issuer during any Marketing Time. For purposes of this
Agreement "Marketing Time" shall mean any time when no suspension of
solicitation of offers to purchase Securities pursuant to Section 3(c) or
Section 4(c) shall be in effect or any time when either any Distributor
shall own
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any Securities with the intention of reselling them or the Issuer has
accepted an offer to purchase Securities but the related settlement has not
occurred.
(ii) So long as this Agreement shall remain in effect with respect to
any Distributor, the Issuer shall not, without the consent of any such
Distributor, solicit or accept offers to purchase Securities otherwise than
to or through one of the Distributors; provided, however, that, subject to
all of the terms and conditions of this Agreement, the foregoing shall not
be construed to prevent the Issuer from selling at any time any Registered
Securities in a firm commitment underwriting pursuant to an underwriting
agreement that does not provide for a continuous offering of such
Registered Securities; and provided, further, that the Issuer reserves the
right from time to time (i) to solicit and accept offers to purchase
Securities directly from, and sell Securities directly to an investor, and
(ii) to accept a specific offer to purchase Securities solicited by a
dealer other than the Distributors (each an "Other Dealer"), without
obtaining the prior consent of any of the Distributors, provided that (x)
the Issuer shall give each of the Distributors notice of its decision to
accept such an offer to purchase Securities in advance of such acceptance,
(y) any Other Dealer shall agree to be bound by and subject to the terms
and conditions of this Agreement binding on the Distributors (including the
commission schedule set forth on Exhibit A), and (z) so long as this
Agreement remains in effect, the Issuer shall not, without the prior
written consent of the Distributors (which shall not be unreasonably
withheld), appoint any other agent or dealer for the purpose of soliciting
or receiving offers to purchase Securities on a continuous basis. In the
case of any sale of Securities by the Issuer directly to an investor and
not resulting from a solicitation made by any Distributor, no commission
will be payable with respect to such sale.
(b) (i) On the basis of the representations and warranties contained
herein, but subject to the terms and conditions herein set forth, the each
Distributor agrees, as an agent of the Issuer, to use reasonable efforts
when requested by the Issuer to solicit offers to purchase the Securities
upon the terms and conditions set forth in the Prospectus, as from time to
time amended or supplemented.
(ii) Unless otherwise expressly agreed by a Distributor and the
Issuer, such Distributor will solicit offers to purchase Securities from
the Issuer through such Distributor, acting as agent, in accordance with
the provisions of this Agreement. In such event, such Distributor shall
communicate to the Issuer, orally or in writing, each reasonable offer to
purchase Securities received by it as agent; and the Issuer shall have the
sole right to accept offers to purchase the Securities and may reject any
such offer, in whole or in part. Each Distributor shall have the right, in
its discretion reasonably exercised, without notice to the Issuer, to
reject any offer to purchase Securities received by it as such agent, in
whole or in part, and any such rejection shall not be deemed a breach of
its agreement contained herein. At the time of delivery of, and payment
for, any Securities sold by the Issuer as a result of a solicitation made
by, or offer to purchase received by, a Distributor, acting on an agency
basis, the Issuer agrees to pay such Distributor a commission in accordance
with the schedule set forth in Exhibit A hereto.
(iii) No Distributor shall have any obligation to purchase Securities
from the Issuer; however, the Issuer and one or more Distributors (each, a
"Presenting
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Distributor") may agree from time to time that such Presenting Distributor
will purchase Securities as principal for resale to investors and other
purchasers selected by such Presenting Distributors. If expressly agreed by
the Issuer and the Presenting Distributors, offers to sell Securities
transmitted by the Distributors and accepted by the Issuer may constitute
acceptance of an offer to sell such Securities to the Presenting
Distributors for resale. Each sale of Securities to a Distributor as
principal shall be made in accordance with the terms of this Agreement and
(unless the Issuer and the Presenting Distributors shall otherwise agree) a
Terms Agreement, in substantially the form of Exhibit B hereto (a "Terms
Agreement"), which will provide for the sale of such Securities to, and the
purchase and reoffering thereof by, the Distributor. In addition, if so
specified in a Terms Agreement executed by the Issuer and one or more
Presenting Distributors, such Presenting Distributors shall act as
representative or representatives of the several underwriters named in such
Terms Agreement for resale of the Securities specified in such Terms
Agreement upon the terms and subject to the conditions specified in such
Terms Agreement, this Agreement and in the Prospectus, as supplemented by
the applicable Pricing Supplement. It is understood that the Distributors
and any underwriters for which they may act as representative propose that
they will offer any Securities which they agree to purchase as principal
for sale as set forth in the Prospectus, as supplemented by the applicable
Pricing Supplement. Each purchase of Securities by a Distributor as
principal shall, unless otherwise agreed, be at a discount from the
principal amount of each such Security equivalent to the applicable
commission set forth in Exhibit A hereto.
(iv) In the event a Distributor purchases Securities as principal
pursuant to Section 3(b)(iii), such Distributor is authorized to engage the
services of any other brokers or dealers in connection with the offer or
sale of such Securities and may reallow any portion of the discount
received from the Issuer to such brokers or dealers. No Distributor shall
offer or sell Securities on an agency basis through any sub-agents without
the consent of the Issuer, which shall not be unreasonably withheld.
(v) No Distributor shall have any responsibility for maintaining
records with respect to the aggregate principal amount of Securities sold,
or otherwise monitoring the availability of Securities for sale under the
Registration Statement.
(vi) No Security which the Issuer has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or sold by
the Issuer, until such Security shall have been delivered to the purchaser
thereof against payment by such purchaser.
(c) Upon receipt of notice from the Issuer as contemplated by Section
4(c) hereof, each Distributor shall suspend its solicitation of offers to
purchase Securities until such time as the Issuer shall have furnished it
with an amendment or supplement to the Registration Statement or the
Prospectus, as the case may be, contemplated by Section 4(c) and shall have
advised such Distributor that such solicitation may be resumed.
The Issuer reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Securities commencing at any time
for any period of
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time or permanently. Upon receipt of at least one Business Day's prior
notice from the Issuer, the Distributors will forthwith suspend
solicitation of offers to purchase Securities from the Issuer until such
time as the Issuer has advised the Distributors that such solicitation may
be resumed. For the purpose of the foregoing sentence, "Business Day" shall
mean any day that is not a Saturday or Sunday, and that in The City of New
York is not a day on which banking institutions generally are authorized or
obligated by law or executive order to close. During such period, the
Issuer shall not be required to comply with the provisions of Sections
6(b), (c) and (d). Upon advising the Distributors that such solicitation
may be resumed, however, the Issuer shall simultaneously provide the
documents required to be delivered by Sections 6(b), (c) and (d) as if the
date of resumption were a Representation Date, and the Distributors shall
have no obligation to solicit offers to purchase the Securities until such
documents have been received by them.
(d) Administrative procedures respecting the sale of Securities (the
"Procedures") shall be agreed upon from time to time by the Distributors
and the Issuer. The initial Procedures, which are set forth in Exhibit C
hereto, shall remain in effect until changed by agreement among the Issuer
and the Distributors. Each Distributor and the Issuer agree to perform the
respective duties and obligations specifically provided to be performed by
each of them herein and in the Procedures. The Issuer will furnish to the
Trustee a copy of the Procedures as from time to time in effect.
(e) The documents required to be delivered by Section 5 hereof shall
be delivered at the office of the Issuer, 5501 Norman Center Drive,
Minneapolis, Minnesota, not later than 10:00 A.M., local time, on the date
of this Agreement or at such later time as may be mutually agreed by the
Issuer and the Distributors, which in no event shall be later than the time
at which the Distributors commence solicitation of purchases of Securities
hereunder, such time and date being herein called the "Closing Date." For
purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, the
settlement date (if later than the otherwise applicable settlement date)
shall be the date for payment of funds and delivery of securities for all
the Securities sold pursuant to an offering of Securities having identical
terms (including the issue date) and terms of sale (whether or not set
forth in a single Terms Agreement).
4. Certain Agreements of the Issuer. The Issuer agrees with the
Distributors that it will furnish to Oppenheimer Wolff & Donnelly LLP, counsel
for the Distributors, one signed copy of the Registration Statement, including
all exhibits, in the form it became effective and of all amendments thereto and
that, in connection with each offering of Securities,
(a) The Issuer will prepare a Pricing Supplement with respect to any
Securities to be offered and sold to or through one or more Distributors
pursuant to this Agreement and, after approval of such Pricing Supplement
by such Distributor or Distributors, will file such Pricing Supplement with
the Commission pursuant to and in accordance with Rule 424(b) under the
Act.
(b) The Issuer will advise each Distributor promptly of any proposal
to amend or supplement the Registration Statement or the Prospectus and
will afford the Distributors a reasonable opportunity to comment on any
such proposed amendment or
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supplement (other than any Pricing Supplement that relates to Securities
not purchased through or by such Distributor), and if the Issuer effects
any amendment or supplementation of the Registration Statement or the
Prospectus to which a Distributor objects, such Distributor shall be
relieved of its obligations under Section 3(b) to solicit offers to
purchase Securities until such time as the Issuer shall have filed such
further amendments or supplements such that such Distributor is reasonably
satisfied with the Registration Statement and the Prospectus, as then
amended or supplemented; and the Issuer will also advise each Distributor
promptly of the filing and effectiveness of any such amendment or
supplement and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement or of any part thereof
and will use commercially reasonable efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus, as then amended or supplemented, would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or if it is necessary at any such time to amend the Prospectus
to comply with the Act, the Issuer will promptly notify each Distributor by
telephone (with confirmation in writing) to suspend solicitation of offers
to purchase the Securities and to cease making offers or sales of
Securities which a Distributor may then own as principal; and if the Issuer
shall decide to amend or supplement the Registration Statement or the
Prospectus, it will promptly advise each Distributor by telephone (with
confirmation in writing) and, subject to the provisions of subsection (a)
of this Section, will promptly prepare and file with the Commission an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Notwithstanding the foregoing,
if, at the time any such event occurs or it becomes necessary to amend the
Prospectus to comply with the Act, any Distributor shall own any of the
Securities with the intention of reselling them, or the Issuer has accepted
an offer to purchase Securities but the related settlement has not
occurred, the Issuer, subject to the provisions of subsection (a) of this
Section, will promptly prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither the Distributors' consent to,
nor their delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 5.
(d) The Issuer will file promptly all documents required to be filed
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act. In addition, on or prior to the date on which the Issuer
makes any announcement to the general public concerning earnings or
concerning any other event which is required to be described, or which the
Issuer proposes to describe, in a document filed pursuant to the Exchange
Act, the Issuer will furnish the information contained or to be contained
in such announcement to each Distributor or will notify each Distributor of
the availability thereof. At any time when a prospectus relating to the
Securities is required to be delivered under the Act, the Issuer will,
subject to the provisions of subsections (a) and (b) of this Section,
promptly cause the Prospectus to be amended or supplemented to reflect the
information contained in any such announcement made (i) during such time or
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(ii) prior to such time and not yet incorporated by reference into the
Prospectus as of such time. The Issuer also will furnish each Distributor
with copies of all press releases or announcements to the general public or
will notify each Distributor of the availability thereof.
(e) The Issuer will notify each Distributor as soon as practicable
(but in any case before any offer to purchase Securities is accepted by the
Issuer) of any downgrading in the rating of any debt securities of the
Issuer or any proposal to downgrade the rating of any debt securities of
the Issuer by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or review
its rating of any debt securities of the Issuer (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading of such rating), as soon as the Issuer learns of such
downgrading, proposal to downgrade or public announcement.
(f) As soon as practicable, but not later than 16 months, after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), the Issuer will make generally available to its
securityholders an earnings statement which will satisfy the provisions of
Section 11(a) of the Act.
(g) At any time when a prospectus relating to the Securities is
required to be delivered under the Act, the Issuer will furnish to each
Distributor copies of the Registration Statement, including all exhibits,
any related preliminary prospectus, any related preliminary prospectus
supplement, the Prospectus and all amendments and supplements to such
documents (including any Pricing Supplement), in each case as soon as
available and in such quantities as are reasonably requested.
(h) The Issuer will arrange for the qualification of the Securities
for sale and the determination of their eligibility for investment under
the laws of such states and other jurisdictions in the United States as the
Distributors designate (or in such foreign jurisdiction as the Issuer and
any Distributor may mutually agree) and will continue such qualifications
in effect so long as required for the distribution; provided, however, that
the Issuer shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified.
(i) So long as any Securities are outstanding, the Issuer will furnish
to the Distributors (or notify the Distributors of the availability of),
(i) as soon as practicable after the end of each fiscal year, a copy of its
annual report to stockholders for such year, (ii) as soon as available, a
copy of each report or definitive proxy statement of the Issuer filed with
the Commission under the Exchange Act or mailed to stockholders, and (iii)
from time to time, such other information concerning the Issuer as the
Distributors may reasonably request.
(j) The Issuer will pay, or reimburse each Distributor for, (i) the
fees, disbursements and expenses of the Issuer's counsel and accountants in
connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary
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Prospectus, the Prospectus and any Pricing Supplements and all other
amendments and supplements thereto and the mailing and delivering of copies
thereof to such Distributor; (ii) the reasonable fees, disbursements and
expenses of counsel for the Distributors in connection with the
establishment of the program contemplated hereby, any opinions to be
rendered by such counsel hereunder and under any Terms Agreement and the
transactions contemplated hereunder and under any Terms Agreement; (iii)
the cost of printing, producing or reproducing this Agreement, any Terms
Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda,
closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of
the Securities; (iv) all expenses in connection with the qualification of
the Securities for offering and sale under state securities laws as
provided in Section 4(b) hereof, including the fees and disbursements of
counsel for the Issuer in connection with such qualification and in
connection with the Blue Sky and legal investment surveys; (v) any fees
charged by securities rating services for rating the Securities; (vi) any
filing fees incident to, and the reasonable fees and disbursements of
counsel for the Distributors in connection with, any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale
of the Securities; (vii) the cost of preparing the Securities; (viii) the
fees and expenses of any Trustee and any Distributor of any Trustee and any
transfer or paying agent of the Issuer and the fees and disbursements of
counsel for any Trustee or such agent in connection with any Indenture and
the Securities; (ix) any advertising expenses connected with the
solicitation of offers to purchase and the sale of Securities so long as
such advertising expenses have been approved by the Issuer; and (x) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this
Section. Except as provided in Sections 7 and 8 of this Agreement, each
Distributor shall pay all other expenses it incurs.
(k) Between the date on which any Distributor agrees to purchase
Securities from the Issuer as principal for resale and the date of delivery
of such Securities, the Issuer will not, without the prior written consent
of such Distributor, offer or sell, or enter into any agreement to sell,
pledge, or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to any of its
debt securities (other than such Securities) in the United States, other
than borrowings under the Issuer's revolving credit agreements and lines of
credit, the private placement of securities and issuances of its commercial
paper, or publicly disclose the intention to make any such offer, sale,
pledge or disposition or filing.
5. Conditions of Obligations. The obligations of each Distributor, as agent
of the Issuer, under this Agreement at any time to solicit offers to purchase
the Securities and to purchase Securities from the Issuer as principal is
subject to the accuracy, on the date hereof, on each Representation Date and on
the date of each such solicitation, of the representations and warranties of the
Issuer herein, to the accuracy, on each such date, of the statements of the
Issuer's officers made pursuant to the provisions hereof, to the performance, on
or prior to each such date, by the Issuer of its obligations hereunder, and to
each of the following additional conditions precedent:
(a) The Prospectus, as amended or supplemented as of any
Representation Date or date of such solicitation, as the case may be, shall
have been filed with the
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Commission in accordance with the Rules and Regulations and no stop order
suspending the effectiveness of the Registration Statement or of any part
thereof shall have been issued and no proceedings for that purpose shall
have been instituted or, to the knowledge of the Issuer or any Distributor,
shall be contemplated by the Commission.
(b) Neither the Registration Statement nor the Prospectus, as amended
or supplemented as of any Representation Date or date of such solicitation,
as the case may be, shall contain any untrue statement of fact which, in
the opinion of any Distributor, is material or omits to state a fact which,
in the opinion of any Distributor, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) There shall not have occurred (i) any change, or any development
or event involving a prospective change, in the financial condition,
business, properties or results of operations of the Issuer or its
subsidiaries which, in the judgment of a majority of the Distributors, is
material and adverse and makes it impractical or inadvisable to proceed
with completion of the public offering or the sale of and payment for the
Securities; (ii) any downgrading in the rating of any debt securities of
the Issuer by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or review
its rating of any debt securities of the Issuer (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any suspension or limitation
of trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any suspension
of trading of any securities of the Issuer on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S.
Federal or, New York authorities; or (v) any outbreak or escalation of
major hostilities in which the United States is involved, any declaration
of war by Congress or any other substantial national or international
calamity or emergency if, in the judgment of a majority of the
Distributors, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
solicitations of offers to purchase, or sales of, Securities.
(d) With respect to any Security denominated in a currency other than
the U.S. dollar, more than one currency or a composite currency or any
Security the principal or interest of which is indexed to such currency,
currencies or composite currency, there shall not have occurred a
suspension or material limitation in foreign exchange trading in such
currency, currencies or composite currency by a major international bank, a
general moratorium on commercial banking activities in the country or
countries issuing such currency, currencies or composite currency, the
outbreak or escalation of hostilities involving, the occurrence of any
material adverse change in the existing financial, political or economic
conditions of, or the declaration of war or a national emergency by, the
country or countries issuing such currency, currencies or composite
currency or the imposition or proposal of exchange controls by any
governmental authority in the country or countries issuing such currency,
currencies or composite currency;
(e) At the Closing Date and, if specified in a Terms Agreement, if
any, at
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the time of delivery of the Securities described in such Terms Agreement,
the Distributors or the Distributor purchasing such Securities pursuant to
such Terms Agreement (the "Purchasing Distributor"), as the case may be,
shall have received an opinion, dated the Closing Date, or such date of
delivery, as the case may be, of Dorsey & Whitney LLP counsel for the
Issuer, to the effect that:
(i) The Issuer has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Minnesota,
with corporate power to own its properties and conduct its business as
described in the Prospectus;
(ii) The Indenture has been duly authorized, executed and
delivered by the Issuer and has been duly qualified under the Trust
Indenture Act and constitutes a valid and binding obligation of the
Issuer enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(iii) Any series of Securities established on or prior to the
date of such opinion has been duly authorized and established in
conformity with the Indenture, and, when the terms of a particular
Security and of its issuance and sale have been duly authorized and
established by all necessary corporate action in conformity with the
Indenture, and such Security has been duly completed, executed,
authenticated and issued in accordance with the Indenture and
delivered against payment as contemplated by this Agreement, such
Security will constitute a valid and binding obligation of the Issuer
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles, it being
understood that such counsel may (a) assume that at the time of the
issuance, sale and delivery of each Security the authorization of such
series will not have been modified or rescinded and there will not
have occurred any change in law affecting the validity, legally
binding character or enforceability of such Security, (b) assume that
neither the issuance, sale and delivery of any Security, nor any of
the terms of such Security, nor compliance by the Issuer with such
terms, will violate any applicable law, any agreement or instrument
then binding upon the Issuer or any restriction imposed by any court
or governmental body having jurisdiction over the Issuer, and (c)
state that as of the date of such opinion a judgment for money in an
action based on Securities denominated in foreign currencies or
currency units in a Federal or State court in the United States
ordinarily would be enforced in the United States only in United
States dollars, and that the date used to determine the rate of
conversion of the foreign currency or currency unit in which a
particular Security is denominated into United States dollars will
depend upon various factors, including which court renders the
judgment;
(iv) The Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) under the Act specified in such opinion on
the date specified therein, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the knowledge of such counsel, are
pending or contemplated under the
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<PAGE>
Act.
(v) The Registration Statement, as of its effective date, the
Registration Statement and the Prospectus, as of the Closing Date, and
any amendment or supplement thereto made by the Issuer prior to the
date of such opinion, as of its respective date, complied as to form
in all material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations; the descriptions in the
Registration Statement and the Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be shown; and
such counsel do not know of any legal or governmental proceedings
required to be described in the Prospectus which are not described as
required or of any contracts or documents of a character required to
be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement which are not
described and filed as required; it being understood that such counsel
need express no opinion as to the financial statements or other
financial data contained in the Registration Statement or the
Prospectus;
(vi) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Issuer for the consummation of the
transactions contemplated by this Agreement in connection with the
issuance and sale of the Securities by the Issuer, except such as have
been obtained and made under the Act and the Trust Indenture Act and
such as may be required under state securities laws (it being
understood that such counsel may assume with respect to each
particular Security that the inclusion of any alternative or
additional terms in such Security that are not currently specified in
the draft forms of Securities examined by such counsel would not
require the Issuer to obtain any regulatory consent, authorization or
approval or make any regulatory filing in order for the Issuer to
issue, sell and deliver such Security);
(vii) The execution, delivery and performance of the Indenture,
this Agreement and the issuance and sale of the Securities, and
compliance with the terms and provisions thereof, will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any applicable statute or any rule or
regulation of any governmental agency or body or the charter or
by-laws of the Issuer or any subsidiary of the Issuer, and the Issuer
has full power and authority to authorize, issue and sell the
Securities as contemplated by this Agreement; and
(viii) This Agreement has been duly authorized, executed and
delivered by the Issuer.
Such opinion shall also state that, although such counsel does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, based
upon conferences with officers of the Issuer, examination of documents
referred to in the Registration Statement and the Prospectus and such other
procedures as such counsel deemed appropriate, nothing has come to such
counsel's attention that causes such counsel to believe that, as of its
effective date, the Registration Statement or any further amendment or
supplement thereto made by the Issuer prior to the date of such opinion
(other than the financial
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statements, related schedules and other financial data therein, as to which
such counsel need make no statement) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that,
as of the date of such opinion, the Prospectus as amended or supplemented
or any further amendment or supplement thereto made by the Issuer prior to
the date of such opinion (other than the financial statements, related
schedules and other financial data therein, as to which such counsel need
make no statement) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading.
In the case of each such opinion delivered pursuant to a Terms
Agreement, (x) the statements contained in such opinion relating to the
Registration Statement or the Prospectus shall relate to the Registration
Statement or the Prospectus, as the case may be, as amended or supplemented
as of the date of the Issuer's acceptance of the offer to purchase such
Securities and as of the time of delivery of such Securities; (y) such
opinion shall relate to the Securities being delivered on the date of such
opinion and not to other Securities as well; and (z) shall state that the
Securities being delivered on the date of such opinion, when delivered
against payment therefor as contemplated by this Agreement, will have been
duly executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Issuer enforceable in
accordance with their terms, subject only to the exceptions set forth in
clause (iii) as to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and general equity principles,
and will conform to the description thereof contained in the Prospectus as
amended or supplemented at such date of delivery.
(f) At the Closing Date and, if specified in a Terms Agreement, if
any, at the time of delivery of the Securities described in such Terms
Agreement, the Distributors or the Purchasing Distributor, as the case may
be, shall have received an opinion, dated the Closing Date, or such date of
delivery, as the case may be, of William J. George, Esq., the Issuer's Vice
President, General Counsel and Secretary, to the effect that the execution,
delivery and performance of the Indenture, this Agreement and the issuance
and sale of the Securities, and compliance with the terms and provisions
thereof, will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any order of any governmental
agency or body or any court having jurisdiction over the Issuer or any
subsidiary of the Issuer or any of their properties or any agreement or
instrument which is material to the financial condition, business,
properties or results of operations of the Issuer or its subsidiaries taken
as a whole (it being understood that such counsel may assume with respect
to each particular Security that the inclusion of any alternative or
additional terms in such Security that are not currently specified in the
draft forms of Securities examined by such counsel will not cause the
issuance, sale or delivery of such Security, the terms of such Security, or
the compliance by the Issuer with such terms, to violate any of the court
orders or laws specified in this paragraph or to result in a default under
or a breach of any of the agreements specified in this paragraph).
(g) At the Closing Date and, if specified in a Terms Agreement, if
any, at
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the time of delivery of the Securities described in such Terms Agreement,
the Distributors or the Presenting Distributor, as the case may be, shall
have received a certificate, dated the Closing Date or such date of
delivery, as the case may be, of the President or any Vice President and a
principal financial or accounting officer of the Issuer in which such
officers, to the best of their knowledge after reasonable investigation,
shall state that the representations and warranties of the Issuer in this
Agreement are true and correct, that the Issuer has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date or such date of
delivery, as the case may be, that no stop order suspending the
effectiveness of the Registration Statement or of any part thereof has been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission, and that subsequent to the date of the most
recent financial statements included or incorporated by reference in the
Prospectus, there has been no material adverse change, nor any development
or event involving a prospective material adverse change, in the financial
condition, business, properties or results of operations of the Issuer and
its subsidiaries taken as a whole, except as set forth in or contemplated
by the Prospectus or as described in such certificate. In the case of each
such certificate delivered pursuant to a Terms Agreement, the statements
contained in such certificate relating to the Registration Statement or the
Prospectus shall relate to the Registration Statement or the Prospectus, as
the case may be, as amended or supplemented as of the date of the Issuer's
acceptance of the offer to purchase such Securities and as of the time of
delivery of such Securities.
(h) At the Closing Date and, if specified in a Terms Agreement, if
any, at the time of delivery of the Securities described in such Terms
Agreement, the Distributors or the Purchasing Distributor, as the case may
be, shall have received a letter, dated the Closing Date or such date of
delivery, as the case may be, of Ernst & Young LLP (or another nationally
recognized firm of independent public accountants), confirming that they
are independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating to the
effect that:
(i) in their opinion, the financial statements and schedules, if
any, examined by them and included in the Prospectus comply as to form
in all material respects with the applicable accounting requirements
of the Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards
No. 71, Interim Financial Information, on any unaudited financial
statements included or incorporated by reference in the Registration
Statement;
(iii) on the basis of the review, if any, referred to in clause
(ii) above, a reading of the latest available interim financial
statements of the Issuer, inquiries of officials of the Issuer who
have responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
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(A) the unaudited financial statements, if any, and any
summary of earnings included in the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations or any material modifications should be made to such
unaudited financial statements for them to be in conformity with
generally accepted accounting principles;
(B) if any unaudited "capsule" information is contained in
the Prospectus, the unaudited consolidated net sales, operating
income, net income and net earnings per share amounts or certain
other amounts as agreed by the Issuer and the Distributor
constituting such "capsule" information and described in such
letter for the three-, six- and nine-month periods ended April 3,
July 3 and October 3, respectively, included in the Prospectus,
as applicable, do not agree with the corresponding amounts set
forth in the unaudited consolidated financial statements for
those same periods or were not determined on a basis
substantially consistent with that of the corresponding amounts
in the audited statements of income;
(C) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than five business days prior to the date of this Agreement,
there was any change in the capital stock or any increase in
short-term indebtedness or long-term debt of the Issuer and its
consolidated subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any decrease in
consolidated net assets, as compared with amounts shown on the
latest balance sheet included in the Prospectus; or
(D) for the period from the closing date of the latest
available income statement included in the Prospectus to the
closing date of the latest available income statement read by
such accountants there were any decreases, as compared with the
corresponding period of the previous year and with the period of
corresponding length ended the date of the latest income
statement included in the Prospectus, in consolidated net sales,
operating income or in the ratio of earnings to fixed charges;
except in all cases set forth in clauses (C) and (D) above, for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statement (in each case to the extent
that such dollar amounts, percentages and other financial information
are derived from the general accounting records of the Issuer and its
subsidiaries subject to the internal controls of the Issuer's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise
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specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus for purposes of this subsection.
In the case of each such letter delivered pursuant to a Terms
Agreement, the statements contained in such letter relating to the
Registration Statement or the Prospectus shall relate to the
Registration Statement or the Prospectus, as the case may be, as
amended or supplemented as of the date of the Issuer's acceptance of
the offer to purchase such Securities and as of the time of delivery
of such Securities.
(i) At the Closing Date and, if specified in a Terms Agreement, if
any, at the time of delivery of the Securities described in such Terms
Agreement, the Distributors or the Purchasing Distributor, as the case may
be, shall have received from Oppenheimer Wolff & Donnelly LLP, counsel for
the Distributors, such opinion or opinions, dated the Closing Date or such
date of delivery, as the case may be, with respect to the incorporation of
the Issuer, the validity of the Securities, the Registration Statement, the
Prospectus and other related matters as the Distributors or the Purchasing
Distributor, as the case may be, may require, and the Issuer shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(j) The Issuer shall have furnished to the Distributors or their
counsel such further certificates and documents as the Distributors or such
counsel shall reasonably request.
The Issuer will furnish the Distributors with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
6. Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of
Securities shall be deemed to be an affirmation that its representations
and warranties contained in this Agreement are true and correct at the time
of such acceptance and a covenant that such representations and warranties
will be true and correct at the time of delivery to the purchaser of the
Securities as though made at and as of each such time, it being understood
that such representations and warranties shall relate to the Registration
Statement and the Prospectus as amended or supplemented at each such time.
Each such acceptance by the Issuer of an offer to purchase Securities shall
be deemed to constitute an additional representation, warranty and
agreement by the Issuer that, as of the date of delivery of such Securities
to the purchaser thereof, after giving effect to the issuance of such
Securities, of any other Securities to be issued on or prior to such
delivery date and of any other Registered Securities to be issued and sold
by the Issuer on or prior to such delivery date, the aggregate amount of
Registered Securities (including any Securities) which have been issued and
sold by the Issuer will not exceed the amount of Registered Securities
registered pursuant to the Registration Statement.
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(b) On each Representation Date on which the Registration Statement or
the Prospectus shall be amended or supplemented (other than by a Pricing
Supplement or by an amendment or supplement relating solely to the terms of
the Securities or a change in the principal amount of Securities remaining
to be sold or similar changes) or by an amendment or supplement relating
solely to the terms of the Securities or a change in the principal amount
of Securities remaining to be sold or similar changes, the Issuer shall,
(A) concurrently with such amendment or supplement, if such amendment or
supplement shall occur at a Marketing Time, or (B) immediately at the next
Marketing Time if such amendment or supplement shall not occur at a
Marketing Time, furnish the Distributors with a certificate, dated the date
of delivery thereof, of the President or any Vice President and a principal
financial or accounting officer of the Issuer, in form satisfactory to the
Distributors, to the effect that the statements contained in the
certificate covering the matters set forth in Section 5(g) hereof which was
last furnished to the Distributors pursuant to this Section 6(b) are true
and correct at the time of such amendment or supplement, as though made at
and as of such time or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in Section 5(g); provided,
however, that any certificate furnished under this Section 6(b) shall
relate to the Registration Statement and the Prospectus as amended or
supplemented at the time of delivery of such certificate and, in the case
of the matters set forth in clause (ii) of Section 5(g), to the time of
delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b), the
Issuer shall, (A) concurrently if such Representation Date shall occur at a
Marketing Time, or (B) immediately at the next Marketing Time if such
Representation Date shall not occur at a Marketing Time, furnish the
Distributors with a written opinion or opinions, dated the date of such
Representation Date, of counsel for the Issuer, in form satisfactory to the
Distributors, to the effect set forth in Sections 5(e) and 5(f) hereof;
provided, however, that to the extent appropriate such opinion or opinions
may reconfirm matters set forth in a prior opinion delivered at the Closing
Date or under this Section 6(c); provided further, however, that any
opinion or opinions furnished under this Section 6(c) shall relate to the
Registration Statement and the Prospectus as amended or supplemented at
such Representation Date and shall state that the Securities sold in the
relevant Applicable Period (as defined below) have been duly executed,
authenticated, issued and delivered and constitute valid and legally
binding obligations of the Issuer enforceable in accordance with their
terms, subject only to the exceptions set forth in clause (iii) of Section
5(e) hereof as to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and general equity principles,
and conform to the description thereof contained in the Prospectus as
amended or supplemented at the relevant date or dates for the delivery of
such Securities to the purchaser or purchasers thereof. For the purpose of
this Section 6(c), "Applicable Period" shall mean with respect to any
opinion delivered on a Representation Date the period commencing on the
date as of which the most recent prior opinion delivered at the Closing
Date or under this Section 6(c) speaks and ending on such Representation
Date.
(d) At each Representation Date referred to in Section 6(b) on which
the Registration Statement or the Prospectus shall be amended or
supplemented to include additional financial information, the Issuer shall
cause Ernst & Young LLP, (A)
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concurrently if such Representation Date shall occur at a Marketing Time,
or (B) immediately at the next Marketing Time if such Representation Date
shall not occur at a Marketing Time, to furnish the Distributors with a
letter, addressed jointly to the Issuer and the Distributors and dated the
date of such Representation Date, in form and substance satisfactory to the
Distributors, to the effect set forth in Section 5(h) hereof; provided,
however, that to the extent appropriate such letter may reconfirm matters
set forth in a prior letter delivered at the Closing Date or pursuant to
this Section 6(d); provided further, however, that any letter furnished
under this Section 6(d) shall relate to the Registration Statement and the
Prospectus as amended or supplemented at such Representation Date, with
such changes as may be necessary to reflect changes in the financial
statements and other information derived from the accounting records of the
Issuer.
(e) On each date for the delivery of Securities to a Distributor as
principal, the Issuer shall, if specified in the applicable Terms
Agreement, furnish such Distributor with a written opinion or opinions,
dated the date of delivery thereof, of counsel for the Issuer, in form
satisfactory to such Distributor, to the effect set forth in clauses (i),
(ii) and (iii) of Section 5(e) hereof; provided, however, that any opinion
furnished under this Section 6(e) shall relate to the Prospectus as amended
or supplemented at such delivery date and shall state that the Securities
being sold by the Issuer on such delivery date, when delivered against
payment therefor as contemplated by this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Issuer enforceable in accordance with
their terms, subject only to the exceptions set forth in clause (iii) of
Section 5(e) hereof as to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and general equity principles,
and will conform to the description thereof contained in the Prospectus as
amended or supplemented at such settlement date.
(f) The Issuer agrees that any obligation of a person who has agreed
to purchase Securities to make payment for and take delivery of such
Securities shall be subject to (i) the accuracy, on the related settlement
date fixed pursuant to the Procedures, of the Issuer's representation and
warranty deemed to be made to the Distributors pursuant to the last
sentence of subsection (a) of this Section 6, and (ii) the satisfaction, on
such settlement date, of each of the conditions set forth in Sections 5(a),
(b) and (c), it being understood that under no circumstance shall any
Distributor have any duty or obligation to exercise the judgment permitted
under Section 5(b) or (c) on behalf of any such person.
7. Indemnification and Contribution.
(a) The Issuer will indemnify and hold harmless each Distributor
against any losses, claims, damages or liabilities, joint or several, to
which such Distributor may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus or preliminary prospectus supplement, or
arise out of or are based
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upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Distributor for any legal or other
expenses reasonably incurred by such Distributor in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Issuer
will not be liable to such Distributor in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in any of such documents which (i) is made in reliance upon
and in conformity with written information furnished to the Issuer by such
Distributor specifically for use therein, unless such loss, claim, damage
or liability arises out of the offer or sale of Securities occurring after
the Distributor has notified the Issuer in writing that such information
should no longer be used therein, it being understood and agreed that the
only such information furnished by any Distributor consists of the
information described as such in subsection (b) below; or (ii) is corrected
in any amendment or supplement to the Registration Statement or the
Prospectus, provided that the Issuer has performed each of its obligations
under Section 4 in respect of such amendment or supplement and, to the
extent that a prospectus relating to the Securities was required to be
delivered by such Distributor under the Act, such Distributor, having been
furnished by or on behalf of the Issuer with copies of the Prospectus as so
amended or supplemented, thereafter fails to deliver such amended or
supplemented Prospectus prior to or concurrently with the sale of the
Securities to the person asserting such loss, claim, damage, or liability.
(b) Each Distributor will severally and not jointly indemnify and hold
harmless the Issuer against any losses, claims, damages or liabilities to
which the Issuer may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out
of or are based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Issuer by such Distributor
specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Issuer in connection with investigating
or defending any such loss, claim, damage, liability or action as such
expenses are incurred, unless such loss, claim, damage or liability arises
out of the offer or sale of Securities occurring after the Distributor has
notified the Issuer in writing that such information should no longer be
used therein, it being understood and agreed that the only such information
furnished by any Distributor consists of the information under the heading
"Plan of Distribution."
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to
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any indemnified party otherwise than under subsection (a) or (b) above to
the extent it is not prejudiced as a proximate result of such failure. In
case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. The
indemnified party will have the right to employ its own counsel in any such
action, but the fees and expenses of such counsel will be at the expense of
the indemnified party unless the indemnified party's counsel has reasonably
concluded that there may be legal defense available to it which are
different from or in addition to those available to the indemnifying party.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject
matter of such action.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuer on the one hand and any Distributor on the
other from the offering pursuant to this Agreement of the Securities which
are the subject of the action or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Issuer on the one hand and any
Distributor on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as well as
any other relevant equitable considerations. The relative benefits received
by the Issuer on the one hand and any Distributor on the other shall be
deemed to be in the same proportions as the total net proceeds from the
offering pursuant to this Agreement of the Securities which are the subject
of the action (before deducting expenses) received by the Issuer bear to
the total discounts and commissions received by such Distributor from the
offering of such Securities pursuant to this Agreement. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Issuer or such Distributor and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this
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subsection (d), no Distributor shall be required to contribute any amount
in excess of the amount by which the total price at which the Securities
which are the subject of the action and which were distributed to the
public through it pursuant to this Agreement or upon resale of Securities
purchased by it from the Issuer exceeds the amount of any damages which
such Distributor has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The obligations of
each Distributor in this subsection (d) to contribute are several, in the
same proportion which the amount of the Securities which are the subject of
the action and which were distributed to the public through such
Distributor pursuant to this Agreement bears to the total amount of such
Securities distributed to the public through all of the Distributors
pursuant to this Agreement, and not joint.
(e) The obligations of the Issuer under this Section 7 shall be in
addition to any liability which the Issuer may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls each Distributor within the meaning of the Act; and the
obligations of each Distributor under this Section 7 shall be in addition
to any liability which each Distributor may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Issuer,
to each officer of the Issuer who has signed the Registration Statement and
to each person, if any, who controls the Issuer within the meaning of the
Act.
8. Status of Each Distributor. In soliciting offers to purchase the
Securities from the Issuer pursuant to this Agreement and in assuming its other
obligations hereunder (other than any obligation to purchase Securities pursuant
to Section 3(b)(iii) hereof), each Distributor is acting individually and not
jointly and is acting solely as agent for the Issuer and not as principal. In
connection with the placement of any Securities by a Distributor, acting as
agent, (a) each Distributor will make reasonable efforts to assist the Issuer in
obtaining performance by each purchaser whose offer to purchase Securities from
the Issuer has been solicited by such Distributor and accepted by the Issuer,
but such Distributor shall have no liability to the Issuer in the event any such
purchase is not consummated for any reason; and (b) if the Issuer shall default
on its obligations to deliver Securities to a purchaser whose offer it has
accepted, the Issuer (i) shall hold the Distributors harmless against any loss,
claim or damage arising from or as a result of such default by the Issuer, and
(ii) in particular, shall pay to the Distributors any commission to which they
would be entitled in connection with such sale.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Issuer or its officers and of the Distributors set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Distributor, the Issuer or any of their respective representatives, officers
or directors or any controlling person and will survive delivery of and payment
for the Securities. If this Agreement is terminated pursuant to Section 10 or
for any other reason or if for any reason the sale of Securities described in a
confirmation or Terms Agreement referred to in Section 3 by the Issuer to a
Distributor is not consummated, the Issuer shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 4(j) and the
obligations of the Issuer
-23-
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under Sections 4(f) and 4(i) and the respective obligations of the Issuer and
the Distributors pursuant to Section 7 shall remain in effect. In addition, if
any such termination of this Agreement shall occur either (i) at a time when any
Distributor shall own any of the Securities with the intention of reselling them
or (ii) after the Issuer has accepted an offer to purchase Securities and prior
to the related settlement, the obligations of the Issuer under the second
sentence of Section 4(c), under Sections 4(a), 4(b), 4(d), 4(e), 4(g), 4(h) and
4(k) and, in the case of a termination occurring as described in (ii) above,
under Sections 3(c), 6(a), 6(e) and 6(f) and under the last sentence of Section
8, shall also remain in effect.
10. Termination. This Agreement may be terminated for any reason at any
time by the Issuer as to any Distributor or, in the case of any Distributor, by
such Distributor insofar as this Agreement relates to such Distributor, upon the
giving of one day's written notice of such termination to the other parties
hereto; provided, however, that this Agreement may not be terminated with
respect to a Distributor by the giving of such notice following receipt by the
Issuer of a confirmation or Terms Agreement referred to in Section 3 relating to
the purchase of Securities by such Distributor and prior to delivery of the
Securities described in such confirmation or Terms Agreement, unless the sale
and purchase of Securities contemplated thereby is rejected by the Issuer in
accordance with Section 3. Any settlement with respect to Securities placed by a
Distributor on an agency basis occurring after termination of this Agreement
shall be made in accordance with the Procedures and each Distributor agrees, if
requested by the Issuer, to take the steps therein provided to be taken by such
Distributor in connection with such settlement.
11. Sales of Securities Denominated in a Currency other than U.S. Dollars
or of Indexed Securities. If at any time the Issuer and any of the Distributors
shall determine to issue and sell Securities denominated in a currency other
than U.S. dollars, which other currency may include a currency unit, or with
respect to which an index is used to determine the amounts of payments of
principal and any premium and interest, the Issuer and any such Distributor may
execute and deliver a supplement to this Agreement for the purpose of making any
appropriate additions to and modifications of the terms of this Agreement (and
the Procedures) applicable to such Securities and the offer and sale thereof.
Subject to the Issuer's obligations under Section 4(h), each Distributor agrees,
directly or indirectly, not to solicit offers to purchase or offer or sell any
Security in or to residents of any foreign jurisdiction except as permitted by
applicable law. The Issuer will not issue Securities denominated in Yen
otherwise than in compliance with applicable Japanese laws, regulations and
policies. In particular, the Issuer or its designated agent shall submit such
reports or information as may be required from time to time by applicable law,
regulations and guidelines promulgated by Japanese governmental and regulatory
authorities in the case of the issue and purchase of the Securities.
12. Notices. Except as otherwise provided herein, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to Credit Suisse First Boston Corporation shall be directed to it at
Eleven Madison Avenue, New York, New York 10010-3629, Attention: Short and
Medium Term Finance Department (Facsimile No. (212) 325-8183); notices to Banc
One Capital Markets, Inc. shall be directed to it at One First National Plaza,
Chicago, Illinois 60670, Attention: Corporate Securities Structuring (Facsimile
No. (312) 732-4172); notices to J.P. Morgan Securities Inc. shall be directed to
it at 60 Wall Street, New York, New York 10260, Attention: Medium Term Note Desk
(Facsimile No. (212) 648-5909);
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and notices to the Issuer shall be directed to it at Jostens, Inc., 5501 Norman
Center Drive, Minneapolis, Minnesota 55437, Attention: Treasurer (Facsimile No.
(612) 830-3261); or in the case of any party hereto, to such other address or
person as such party shall specify to each other party by a notice given in
accordance with the provisions of this Section 12. Any such notice shall take
effect at the time of receipt.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto, their respective successors, the officers and directors
and controlling persons referred to in Section 7 and, to the extent provided in
Section 6(f), any person who has agreed to purchase Securities from the Issuer,
and no other person will have any right or obligation hereunder.
14. Counterparts. This Agreement and any Terms Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same Agreement.
15. Applicable Law. This Agreement and any Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to principles of conflicts of laws.
The Issuer hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to this Agreement or any Terms
Agreement or the transactions contemplated hereby or thereby.
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If the foregoing correctly sets forth our agreement, please indicate your
acceptance hereof in the space provided for that purpose below.
Very truly yours,
JOSTENS, INC.
By: /s/ William N. Priesmeyer
-----------------------------------
Name: William N. Priesmeyer
Title: Senior Vice President and
Chief Financial Officer
CONFIRMED AND ACCEPTED, as of
the date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:/s/ Helena Wilner
--------------------------------
Name: Helena Wilner
Title: Director
BANC ONE CAPITAL MARKETS, INC.
By:/s/ Katherine Cokic
--------------------------------
Name: Katherine Cokic
Title: Vice President
J.P. MORGAN SECURITIES INC.
By:/s/ John E. Simmons
--------------------------------
Name: John E. Simmons
Title: Vice President
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EXHIBIT 4.1
_____________________________________________________________________
JOSTENS, INC.
TO
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Trustee
____________________
INDENTURE
Dated as of August 30, 1999
_____________________
_____________________________________________________________________
<PAGE>
JOSTENS, INC.
-------------
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of August 30, 1999
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
(S) 310 (a)(1 .............................................. 609
(a)(2).............................................. 609
(a)(3).............................................. Not Applicable
(a)(4).............................................. Not Applicable
(a)(5) ........................................... 609
(b) ................................................ 608, 610
(S) 311 .................................................... 613
(S) 312 (a)................................................. 701,702(a)
(b)................................................. 702(b)
(c)................................................. 702(c)
(S) 313 .................................................... 703
(S) 314 (a)................................................. 704
(b)................................................. Not Applicable
(c)(1).............................................. 102
(c)(2).............................................. 102
(c)(3).............................................. Not Applicable
(d)................................................. Not Applicable
(e)................................................. 102
(S) 315 (a)................................................. 601
(b)................................................. 602
(c)................................................. 601
(d)................................................. 601
(e)................................................. 514
(S) 316 (a)................................................. 101
(a)(1)(A)........................................... 502,512
(a)(1)(B)........................................... 513
(a)(2).............................................. Not Applicable
(b)................................................. 508
(S) 317 (a)(1).............................................. 503
(a)(2).............................................. 504
(b)................................................. 1003
(S) 318 (a)................................................. 107
___________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
RECITALS OF THE COMPANY............................................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION....................................... 1
SECTION 101. Definitions..................................................................... 1
SECTION 102. Compliance Certificates and Opinions............................................ 8
SECTION 103. Form of Documents Delivered to Trustee.......................................... 9
SECTION 104. Acts of Holders................................................................. 9
SECTION 105. Notices, Etc., to Trustee and Company........................................... 10
SECTION 106. Notice to Holders; Waiver....................................................... 11
SECTION 107. Compliance with Trust Indenture Act............................................. 11
SECTION 108. Effect of Headings and Table of Contents........................................ 11
SECTION 109. Successors and Assigns.......................................................... 11
SECTION 110. Separability Clause............................................................. 12
SECTION 111. Benefits of Indenture........................................................... 12
SECTION 112. Governing Law................................................................... 12
SECTION 113. Legal Holidays.................................................................. 12
ARTICLE TWO
SECURITY FORMS................................................................................ 12
SECTION 201. Forms Generally................................................................. 12
SECTION 202. Form of Face of Security........................................................ 13
SECTION 203. Form of Reverse of Security..................................................... 16
SECTION 204. Form of Trustee's Certificate of Authentication................................. 19
SECTION 205. Form of Legend for Global Securities............... ............................ 19
ARTICLE THREE
THE SECURITIES................................................................................ 20
SECTION 301. Amount Unlimited; Issuable in Series............................................ 20
SECTION 302. Denominations................................................................... 22
SECTION 303. Execution, Authentication, Delivery and Dating.................................. 23
SECTION 304. Temporary Securities............................................................ 25
SECTION 305. Registration, Registration of Transfer and Exchange............................. 25
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities................................ 27
SECTION 307. Payment of Interest; Interest Rights Preserved.................................. 27
SECTION 308. Persons Deemed Owners........................................................... 29
SECTION 309. Cancellation.................................................................... 29
SECTION 310. Computation of Interest......................................................... 29
SECTION 311. Payment to be in Proper Currency................................................ 29
ARTICLE FOUR
SATISFACTION AND DISCHARGE.................................................................... 30
SECTION 401. Satisfaction and Discharge of Indenture.......................................... 30
</TABLE>
i
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<TABLE>
<S> <C>
SECTION 402. Application of Trust Money...................................................... 31
SECTION 403. Defeasance and Discharge of Indenture........................................... 31
ARTICLE FIVE
REMEDIES...................................................................................... 33
SECTION 501. Events of Default............................................................... 33
SECTION 502. Acceleration of Maturity; Rescission and Annulment.............................. 34
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee................. 35
SECTION 504. Trustee May File Proofs of Claim................................................. 36
SECTION 505. Trustee May Enforce Claims Without Possession of Securities..................... 37
SECTION 506. Application of Money Collected.................................................. 37
SECTION 507. Limitation on Suits............................................................. 37
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest....... 38
SECTION 509. Restoration of Rights and Remedies.............................................. 38
SECTION 510. Rights and Remedies Cumulative.................................................. 38
SECTION 511. Delay or Omission Not Waiver.................................................... 39
SECTION 512. Control by Holders.............................................................. 39
SECTION 513. Waiver of Past Defaults......................................................... 39
SECTION 514. Undertaking for Costs........................................................... 40
SECTION 515. Waiver of Stay or Extension Laws................................................ 40
ARTICLE SIX
THE TRUSTEE................................................................................... 41
SECTION 601. Certain Duties and Responsibilities............................................. 41
SECTION 602. Notice of Defaults.............................................................. 41
SECTION 603. Certain Rights of Trustee....................................................... 41
SECTION 604. Not Responsible for Recitals or Issuance of Securities.......................... 42
SECTION 605. May Hold Securities............................................................. 43
SECTION 606. Money Held in Trust............................................................. 43
SECTION 607. Compensation and Reimbursement.................................................. 43
SECTION 608. Disqualification; Conflicting Interests......................................... 44
SECTION 609. Corporate Trustee Required; Eligibility......................................... 44
SECTION 610. Resignation and Removal; Appointment of Successor............................... 44
SECTION 611. Acceptance of Appointment by Successor.......................................... 45
SECTION 612. Merger, Conversion, Consolidation or Succession to Business..................... 47
SECTION 613. Preferential Collection of Claims Against Company............................... 47
SECTION 614. Appointment of Authenticating Agent............................................. 47
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY............................................. 49
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders....................... 49
SECTION 702. Preservation of Information; Communications to Holders.......................... 49
SECTION 703. Reports by Trustee.............................................................. 49
SECTION 704. Reports by Company.............................................................. 50
</TABLE>
ii
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<TABLE>
<S> <C>
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.......................................... 51
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms............................ 51
SECTION 802. Successor Substituted........................................................... 51
ARTICLE NINE
SUPPLEMENTAL INDENTURES....................................................................... 51
SECTION 901. Supplemental Indentures Without Consent of Holders.............................. 52
SECTION 902. Supplemental Indentures with Consent of Holders................................. 53
SECTION 903. Execution of Supplemental Indentures............................................ 54
SECTION 904. Effect of Supplemental Indentures............................................... 54
SECTION 905. Conformity with Trust Indenture Act............................................. 54
SECTION 906. Reference in Securities to Supplemental Indentures.............................. 55
SECTION 907. Notice of Supplemental Indentures................................................ 55
ARTICLE TEN
COVENANTS..................................................................................... 55
SECTION 1001. Payment of Principal, Premium and Interest..................................... 55
SECTION 1002. Maintenance of Office or Agency................................................ 55
SECTION 1003. Money for Securities Payments to Be Held in Trust.............................. 56
SECTION 1004. Existence...................................................................... 57
SECTION 1005. Maintenance of Properties...................................................... 57
SECTION 1006. Payment of Taxes and Other Claims.............................................. 57
SECTION 1007. Restriction on Secured Debt.................................................... 58
SECTION 1008. Restriction on Sale and Leaseback Transactions................................. 60
SECTION 1009. Defeasance of Certain Obligations.............................................. 61
SECTION 1010. Waiver of Certain Covenants.................................................... 62
ARTICLE ELEVEN
REDEMPTION OF SECURITIES...................................................................... 63
SECTION 1101. Applicability of Article....................................................... 63
SECTION 1102. Election to Redeem; Notice to Trustee.......................................... 63
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.............................. 64
SECTION 1104. Notice of Redemption........................................................... 64
SECTION 1105. Deposit of Redemption Price.................................................... 65
SECTION 1106. Securities Payable on Redemption Date.......................................... 65
SECTION 1107. Securities Redeemed in Part.................................................... 65
ARTICLE TWELVE
SINKING FUNDS................................................................................. 66
SECTION 1201. Applicability of Article....................................................... 66
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.......................... 66
SECTION 1203. Redemption of Securities for Sinking Fund...................................... 66
</TABLE>
iii
<PAGE>
INDENTURE, dated as of August 30, 1999 between Jostens, Inc., a corporation
duly organized and existing under the laws of the State of Minnesota (herein
called the "Company"), having its principal office at 5501 Norman Center Drive,
Minneapolis, Minnesota 55437, and Norwest Bank Minnesota, National Association,
as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
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 (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. 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;
(3) any gender used in this Indenture shall be deemed and construed to
include correlative words of the masculine, feminine or neuter gender;
(4) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein 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 at the date of such computation; and
1
<PAGE>
(5) 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 Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"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" in respect of any Sale and Leaseback Transaction means,
at the date of determination, the present value (discounted at the rate of
interest implicit in the terms of the lease) of the obligation of the lessee for
net rental payments during the remaining term of the lease (including any period
for which such lease has been extended or may, at the option of the lessor, be
extended). "Net rental payments" under any lease for any period means the sum
of the rental and other payments required to be paid in such period by the
lessee thereunder, excluding any amounts required to be paid by such lessee
(whether or not designated as rental or additional rental) on account of
maintenance and repairs, insurance, taxes, assessments, water rates or similar
charges required to be paid by such lessee thereunder or any amounts required to
be paid by such lessee thereunder contingent upon the amount of sales,
maintenance and repairs, insurance, taxes, assessments, water rates or similar
charges.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee appointed by 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. Where any provision of this Indenture refers to action to be
taken pursuant to a Board Resolution (including establishment of any series of
the Securities and the forms and terms thereof), such action may be taken by any
committee, officer or employee of the Company authorized to take such action by
a Board Resolution.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions generally in that Place of Payment are obligated by law or
executive order to close, unless otherwise specified in a form of Security.
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"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution of this instrument 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.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (a) all current liabilities (excluding any indebtedness for money
borrowed having a maturity of less than 12 months from the date of the most
recent consolidated balance sheet of the Company but which by its terms is
renewable or extendable beyond 12 months from such date at the option of the
borrower) and (b) all goodwill, trade names, patents, unamortized debt discount
and expense and any other like intangibles, all as set forth on the most recent
consolidated balance sheet of the Company and computed in accordance with
generally accepted accounting principles.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered.
"Corporation" includes corporations, associations, companies, joint stock
companies and business trusts.
"Debt" has the meaning specified in Section 1007.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
clearing agency registered under the Exchange Act, specified for that purpose as
contemplated by Section 301 or any successor clearing agency registered under
the Exchange Act as contemplated by Section 305, and if at any time there is
more than one such Person, "Depositary" as used with respect to the Securities
of any series shall mean the Depositary with respect to the Securities of such
series.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Funded Debt" means Debt 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 Debt.
"Global Security" means a Security bearing the legend specified in Section
205 evidencing all or part of a series of Securities, issued to the Depositary
for such series or its nominee, and registered in the name of such Depositary or
nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"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 301; provided, however, that, if at any time more than one Person is
acting as Trustee under this instrument due to the appointment of one or more
separate Trustees for any one or more separate series of Securities pursuant to
Section 610(e), "Indenture" shall mean, with respect to such series of
Securities for which any such Person is Trustee, 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
for which such Person is Trustee established as contemplated by Section 301,
exclusive, however, of any provisions or terms which relate solely to other
series of Securities for which such Person is not Trustee, regardless of when
such terms or provisions were adopted, and exclusive of any provisions or terms
adopted by means of one or more indentures supplemental hereto executed and
delivered after such Person had become such Trustee but to which such Person, as
such Trustee, was not a party.
"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.
"Lien" or "Liens" has the meaning specified in Section 1007.
"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 or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President, a Senior Vice President or a Vice President of the
Company, and by the Treasurer or an Assistant Treasurer of the Company, and
delivered to the Trustee.
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"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company and, in the case of counsel for the Company, may be either
inside or outside counsel reasonably acceptable to the Trustee, which opinion
may be subject to standard qualifications and exceptions.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable at maturity
or upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"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 canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption 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; provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) Securities which have been paid pursuant to Section 306 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, (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 pursuant to Section 502, (ii) the principal amount of a Security
denominated in one or more foreign currencies or currency units that shall be
deemed to be Outstanding shall be the U.S. dollar equivalent, determined in the
manner provided as contemplated by Section 301 as of the date of original
issuance of such Security, of the principal amount (or, in the case of an
Original Issue Discount Security, the U.S. dollar equivalent, determined as of
the date of original issuance of such Security, of the amount determined as
provided in (i) above) of such Security as determined by the Company pursuant to
Section 301, and (iii) 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, only
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Securities which the Trustee 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 premium, if any) and/or interest on any Securities on behalf
of the Company.
"Periodic Offering" means an offering of Securities of a series from time
to time the specific terms of which Securities, including without limitation the
rate or rates of interest (or formula for determining the rate or rates of
interest), if any, thereon, the Stated Maturity or Maturities thereof and the
redemption provisions, if any, with respect thereto, are to be determined by the
Company or its agents upon the issuance of such Securities.
"Person" means any individual, Corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of (and premium, if any) and/or
interest on the Securities of that series are payable, 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.
"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 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any manufacturing or processing plant
(consisting of real estate buildings and fixtures) located within the United
States of America (other than its territories or possessions) and owned by the
Company or any Subsidiary, the gross book value (without deduction of any
depreciation reserves) of which on the date as of which the determination is
being made exceeds 4% of Consolidated Net Tangible Assets of the Company, except
any such plant (i) to the extent financed by obligations issued by a State or
local governmental unit pursuant to Section 142(a)(5), 142(a)(6), 142(a)(8) or
144(a) of the Internal Revenue Code of 1986, or any successor provision thereof,
or (ii) which is not of material importance to the business conducted by the
Company and its Subsidiaries, taken as a whole (as determined by any two of the
following: the Chairman of the Board of the Company, its President, its Chief
Financial Officer, Chief Operating Officer, its Treasurer or Vice President,
General Counsel).
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"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Required Currency" has the meaning specified in Section 311.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee assigned by it to administer its corporate trust matters.
"Restricted Subsidiary" means any Subsidiary which owns or leases a
Principal Property.
"Sale and Leaseback Transaction" has the meaning specified in Section 1008.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture; provided, however, that if at any time there is more than one
Person acting as Trustee under this Indenture, "Securities" with respect to the
Indenture as to which such Person is Trustee shall have the meaning stated in
the first recital of this Indenture and shall more particularly mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means any Corporation of which securities (excluding
securities entitled to vote for directors only by reason of the happening of a
contingency) entitled to elect at least a majority of the corporation's
directors shall at the time be owned, directly or indirectly, by the Company, or
one or more Subsidiaries, or by the Company and one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument 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, and if at any time there is
more than one such Person, "Trustee" as
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used with respect to the Securities of any series shall mean the Trustee with
respect to Securities of that series.
"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, except as provided
in Section 905.
"U.S. Government Obligations" means direct obligations of the United States
of America, backed by its full faith and credit.
"Vice President", when used with respect to the Company, 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", when used with respect to a Corporation, 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
such Corporation (irrespective of whether at the time stock or securities of any
other class or classes shall have or might have voting power by reason of the
happening of any contingency).
SECTION 102. Compliance Certificates and Opinions.
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 with respect to compliance with a condition or
covenant provided for in this Indenture 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, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion whether such covenant or condition has been
complied with; and
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(4) a statement whether, in the opinion of each such individual, such
condition or covenant has been complied with.
Every such certificate or opinion provided under this Indenture shall be without
personal recourse to the individual executing the same and may include an
express statement to such effect.
SECTION 103. 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 any officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such officer's 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 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. All applications, requests, consents, certificates,
statements, opinions or other instruments given under this Indenture shall be
without personal recourse to any individual giving the same and may include an
express statement to such effect.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing,
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any
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purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
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 him the execution thereof. Where such execution is by
a signer acting in a capacity other than such signer's individual capacity, such
certificate or affidavit shall also constitute sufficient proof of such signer'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 ownership of Securities shall be proved by the Security Register.
The Company may fix any day as the record date for the purpose of determining
the Holders of Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders of
one or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action.
(d) 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.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document 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 a Responsible Officer of the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Department, 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
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office specified in the first paragraph of this instrument (Attention:
Treasurer) or at any other address previously furnished in writing to the
Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at such Holder's address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notice shall be given by such other method as the Company shall reasonably
determine and the same shall constitute a sufficient notification for every
purpose hereunder.
SECTION 107. Compliance with Trust Indenture Act.
This Indenture is subject to, and shall be governed by, the provisions of
the Trust Indenture Act that are required to be part of this Indenture. If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to be a part of and govern this
Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. 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 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company or the
Trustee shall bind its successors and assigns, whether so expressed or not.
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SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, 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, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, without regard for principles
of conflicts of law thereof.
SECTION 113. Legal Holidays.
Except as may be otherwise specified with respect to any particular
Securities, in any case where any Interest Payment Date, Redemption Date or
Stated 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) 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 or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue on such unpaid interest or
principal (and premium, if any) for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution and set forth in an Officers' Certificate or established by
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,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. When the form of Securities
of
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any series is 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 303 for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in substantially the
form set forth in this Article with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture.
The definitive Securities may 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, as evidenced by their execution of such
Securities.
SECTION 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the regulations
thereunder.]
JOSTENS, INC.
__________________________
No. __________ [$]_________________
Jostens, Inc., a corporation duly organized and existing under the laws of
Minnesota (herein called the "Company", which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to _________________________________________, or registered
assigns, the principal sum of ______________________________ [Dollars] on
________________________________ [If the Security is to bear interest prior to
Maturity, insert --, and to pay interest thereon from ________________ or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, [semiannually in arrears on ___________________ and
__________________________ in each year] [annually in arrears on
_________________________], commencing ________________________, at the rate of
_________% per annum, until the principal hereof is paid or made available for
payment [If applicable insert --, and (to the extent that the payment of such
interest shall be legally enforceable) at the rate of ______% per annum on any
overdue principal and premium and on any overdue installment of interest]. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the ________________________________ [or ________________________________ ]
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner
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not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture]. [If the
Security is not to bear interest prior to Maturity, insert --. The principal of
this Security shall not bear interest except in the case of a default in payment
of principal upon acceleration, upon redemption or at Stated Maturity and in
such case the overdue principal of this Security shall bear interest at the rate
of ______% per annum (to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of such default in
payment to the date payment of such principal has been made or duly provided
for. Interest on any overdue principal shall be payable on demand. Any such
interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of _________% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [If applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in ______________________, in
such coin or currency [of the United States of America] as at the time of
payment is legal tender for payment of public and private debts [If applicable,
insert --; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register].
[If applicable, insert -- [The Securities of this series are/This Security
is] subject to redemption prior to the Stated Maturity as described on the
reverse hereof.]
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
JOSTENS, INC.
By______________________________
Attest:
___________________________
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of August 30, 1999 (herein called the
"Indenture"), between the Company and Norwest Bank Minnesota, National
Association, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be authenticated and delivered. This Security is one
of the series designated on the face hereof [, limited in aggregate principal
amount to [$] ________________________]. By the terms of the Indenture,
additional Securities [If applicable, insert -- of this series and] of other
separate series, which may vary as to date, amount, Stated Maturity, interest
rate or method of calculating the interest rate and in other respects as therein
provided, may be issued in an unlimited principal amount.
[If applicable, insert -- [The Securities of this series are/This Security
is] subject to redemption prior to the Stated Maturity hereof upon not less than
30 days' notice by mail to the Person[s] in whose name[s] [the Securities to be
redeemed are/this Security is] registered at the address specified in the
Security Register, [If applicable, insert -- (1) on ____________ in any year
commencing with the year ______________ and ending with the year _____________
through operation of the sinking fund for this series at a Redemption Price
equal to 100% of the principal amount, and (2)] at any time [on or after
_____________], as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal amount):
if redeemed
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[on or before ________________, ________%, and if redeemed] during the 12-month
period beginning _____________ of the years indicated,
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
and thereafter at a Redemption Price equal to _______% of the principal amount,
[If applicable, insert -- together in the case of any such redemption [If
applicable, insert -- (whether through operation of the sinking fund or
otherwise)] with accrued interest to the Redemption Date, provided, however,
that installments of interest whose Stated Maturity is on or prior to (but not
after) such Redemption Date will be payable to the [Holders of such
Securities/Holder of this Security] (or one or more Predecessor Securities) of
record at the close of business on the relevant Record Dates referred to on the
face hereof, all as provided in the Indenture]. [If there is no sinking fund,
insert -- [The Securities of this series are/This Security is] not subject to
any sinking fund.]
[If applicable, insert -- [The Securities of this series are/This Security
is] subject to redemption prior to the Stated Maturity hereof upon not less than
30 days' notice by mail to the Person[s] in whose name[s] [the Securities to be
redeemed are/this Security is] registered at the address specified in the
Security Register, (1) on ______________ in any year commencing with the year
_______ and ending with the year ______________ through operation of the sinking
fund for this series at the Redemption Prices (expressed as percentages of the
principal amount) set forth in the table below, and (2) at any time [on or after
______________________], as a whole or in part, at the election of the Company,
at the Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in the
table below:
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ------------ -------------------
If redeemed during the 12-month period beginning _________________ of the years
indicated, and thereafter at a Redemption Price equal to _____% of the principal
amount [If applicable, insert --, together in the case of any such redemption
(whether through operation of the sinking fund or otherwise) with accrued
interest to the Redemption Date, provided, however, that installments of
interest whose Stated Maturity is on or prior to (but not after) such Redemption
Date will be payable to the [Holders of such Securities/Holder of this Security]
(or one or more Predecessor Securities) of record at the close of business on
the relevant Record Dates referred to on the face hereof, all as provided in the
Indenture].]
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[Notwithstanding the foregoing, the Company may not, prior to _____, redeem
any Securities of this series as contemplated by [Clause (2) of] the preceding
paragraph as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an interest cost
to the Company (calculated in accordance with generally accepted financial
practice) of less than _____% per annum.]
[The sinking fund for this series provides for the redemption on
___________________ in each year beginning with the year _____ and ending with
the year _____ of [not less than] [$] _____________________ [("mandatory sinking
fund") and not more than [$] ___________] aggregate principal amount of
Securities of this series. [Securities of this series acquired or redeemed by
the Company otherwise than through [mandatory] sinking fund payments may be
credited against subsequent [mandatory] sinking fund payments otherwise required
to be made -- in the inverse order in which they become due.]]
[In the event of redemption of this Security in part only, a new Security
or Securities of this series and of like tenor or an authorized denomination for
the unredeemed portion hereof will be issued in the name of the Holder hereof
upon the cancellation hereof, and, in the event of transfer or exchange, a new
Security or Securities of this series and of like tenor and for a like aggregate
principal amount will be issued to the Holder, in the case of exchange, or the
designated transferee or transferees, in the case of transfer.]
[If the Security is not an Original Issue Discount Security, -- If an Event
of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may (subject to the
conditions set forth in the Indenture) be declared due and payable in the manner
and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, -- If an Event of
Default with respect to Securities of this series shall occur and be continuing,
a lesser amount than the principal amount due at the Stated Maturity of the
Securities of this series may (subject to the conditions set forth in the
Indenture) be declared due and payable in the manner and with the effect
provided in the Indenture. The amount due and payable on this Security in the
event that this Security is declared due and payable prior to the Stated
Maturity hereof shall be -- insert formula for determining the amount. Upon
payment (i) of the amount of principal so declared due and payable and (ii) of
interest on any overdue principal and overdue interest (in each case to the
extent that the payment of such interest shall be legally enforceable), all of
the Company's obligations in respect of the payment of the principal of and
interest, if any, on the Securities of this series shall terminate.]
The Indenture contains provisions for defeasance at any time of the
Company's obligations in respect of (i) the entire indebtedness of this Note or
(ii) certain restrictive covenants with respect to this Note, in each case upon
compliance with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the
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Holders of the Securities of each series to be affected under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
Outstanding of each series to be affected and, for certain purposes, without the
consent of the Holders of any Securities at the time Outstanding. The Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
[If the Security is an Original Issue Discount Security, -- 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 under the Indenture or whether a quorum is present at a
meeting of Holders of Securities, the principal amount of any 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 the acceleration of the Maturity thereof.]
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of (and premium, if any)
and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or such Holder's attorney
duly authorized in writing, and thereupon one or more new Securities of this
series, of like tenor and of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of [$1,000] and any amount in excess thereof which is
an integral multiple of [$1,000]. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
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<PAGE>
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this 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 this Security is registered in the Security Register as the
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
The Securities shall be governed by and construed in accordance with the
laws of the State of New York.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein and issued
pursuant to the within-mentioned Indenture.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By_______________________________
Authorized Officer
SECTION 205. Form of Legend for Global Securities.
Any Global Security authenticated and delivered hereunder shall, in
addition to the provisions contained in Sections 202 and 203, bear a legend in
substantially the following form or such other form as may be required by the
Depositary:
"Unless this certificate is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to the
issuer or to its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of The Depository
Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an interest herein."
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ARTICLE THREE
THE SECURITIES
SECTION 301. 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. Securities of any one
series need not be issued at the same time, and unless specifically provided
otherwise, a series may be reopened, without the consent of the Holders, for
issuances of additional securities of such series.
There shall be established by or pursuant to a Board Resolution and,
subject to Section 303, set forth or determined in the manner provided in an
Officers' Certificate or established in one or more indentures supplemental
hereto, prior to the initial issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(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 lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906, 1107 and except for any Securities which,
pursuant to Section 303, are deemed never to have been authenticated and
delivered hereunder);
(3) the Person to whom any interest on a 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;
(4) the date or dates on which the principal or installments of
principal of the Securities of the series is or are payable and any rights
to extend such date or dates;
(5) 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 such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any Interest Payment Date;
(6) the place or places where the principal of (and premium, if any)
and interest on Securities of the series shall be payable, any Securities
of the series may be
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<PAGE>
surrendered for registration of transfer or exchange and notices and
demands to or upon the Company with respect to the Securities of the series
and this Indenture may be served;
(7) 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 Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 or any amount in excess
thereof which is an integral multiple of $1,000, the denominations in which
Securities of the series shall be issuable;
(10) the currency, currencies or currency units in which payment of
the principal of and any premium and interest on any Securities of the
series shall be payable if other than the currency of the United States of
America, the manner of determining the U.S. dollar equivalent of the
principal amount thereof for purposes of the definition of "Outstanding" in
Section 101, provided, however, that prior to the issuance of any such
Securities, the Company shall have obtained the written consent of the
Trustee, which consent may be withheld in the sole reasonable discretion of
the Trustee, to the currency, currencies or currency units so established
and, if the principal of or any premium or interest on any Securities of
the series is to be payable, at the election of the Company or a Holder
thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency,
currencies or currency units in which payment of the principal of and any
premium and interest on Securities of such series as to which such election
is made shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made;
(11) any other event or events of default applicable with respect to
Securities of the series in addition to or in lieu of those provided in
Section 501(1) through (7);
(12) any other restrictive covenants applicable with respect to the
Debt Securities of the series in addition to or in lieu of those provided
in Sections 1007 and 1008;
(13) if less 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
502;
(14) any index used to determine the amount of payment of principal of
and any premium and interest on the Securities of the series;
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<PAGE>
(15) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Global Securities and, if so, (a) the
Depositary with respect to such Global Security or Securities and (b) the
circumstances under which any such Global Security may be exchanged for
Securities registered in the name of, and any transfer of such Global
Security may be registered to, a Person other than such Depositary or its
nominee, if other than as set forth in Section 305;
(16) if principal of or any premium or interest on the Securities of a
series is denominated or payable in a currency or currencies other than the
currency of the United States of America, whether and under what terms and
conditions the Company may be discharged from obligations pursuant to
Sections 403 and 1107 with respect to Securities of such series; and
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series (other than Securities offered in a
Periodic Offering) shall be substantially identical except as to denomination
and except as may otherwise be provided by or pursuant to the Board Resolution
referred to above and, subject to Section 303, set forth, or determined in the
manner provided, in the Officers' Certificate referred to above or in any such
indenture supplemental hereto.
If any of the terms of the series 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 Officers'
Certificate setting forth the terms of the series.
With respect to Securities of a series offered in a Periodic Offering, such
Board Resolution and Officers' Certificate or supplemental indenture may provide
general terms or parameters for Securities of such series and provide either
that the specific terms of particular Securities of such series shall be
specified in a Company Order or that such terms shall be determined by the
Company or its agents in accordance with other procedures specified in a Company
Order as contemplated by the third paragraph of Section 303.
SECTION 302. Denominations.
Unless otherwise provided in the applicable Officers' Certificate or
supplemental indenture, the Securities of each series shall be issued in
registered form without coupons in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such provisions with respect
to the Securities of any series, the Securities of such series shall be issuable
in denominations of $1,000 or any amount in excess thereof which is an integral
multiple of $1,000.
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SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President or one of its Vice Presidents. The signature of any
of these officers on the Securities may be manual or facsimile.
Securities 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.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, or, in the case of Securities
offered in a Periodic Offering, from time to time in accordance with such other
procedures (including, without limitation, the receipt by the Trustee of
electronic instructions from the Company or its duly authorized agents, promptly
confirmed in writing by the Company) acceptable to the Trustee as may be
specified from time to time by a Company Order for establishing the specific
terms of particular Securities being so offered, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or forms or terms of the Securities of the series have been established by
or pursuant to one or more Board Resolutions as permitted by Sections 201 and
301, in authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(a) that the form or forms of such Securities have been established in
conformity with the provisions of this Indenture;
(b) that the terms of such Securities have been established in
conformity with the provisions of this Indenture;
(c) that such Securities, when authenticated and delivered by the
Trustee, issued by the Company and paid for by the purchasers thereof in
the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting the enforcement of creditors' rights and to general equity
principles;
(d) that authentication and delivery of such Securities and the
execution and delivery of the supplemental indenture, if any, by the
Trustee will not violate the terms of the Indenture;
(e) that the Company has the corporate power to issue such Securities,
and has duly taken all necessary corporate action with respect to such
issuance; and
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(f) that the issuance of such Securities will not contravene the
articles of incorporation or bylaws of the Company or result in any
violation of any of the terms or provisions of any law or regulation or of
any indenture, mortgage or other agreement known to such Counsel by which
the Company is bound, which contravention or violation would reasonably be
expected to materially adversely affect the Company's performance of its
obligations with respect to the Securities;
provided, however, that, with respect to Securities of a series offered in a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel in connection only with the first authentication of each form of
Securities of such series and that the opinions described in Clauses (b) and (c)
above may state, respectively, that
(b) if the terms of such Securities are to be established pursuant to
a Company Order or pursuant to such procedures as may be specified from
time to time by a Company Order, all as contemplated by a Board Resolution
or action taken pursuant thereto, such terms will have been duly authorized
by the Company and established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when executed by the Company, completed,
authenticated and delivered by the Trustee in accordance with this
Indenture, and issued and delivered by the Company and paid for, all in
accordance with any agreement of the Company relating to the offering,
issuance and sale of such Securities, will be duly issued under this
Indenture and will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting generally the enforcement of creditors' rights and to general
principles of equity.
With respect to Securities of a series offered in a Periodic Offering, the
Trustee may rely, as to the authorization by the Company of any of such
Securities, the form or forms and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel, Company
Order and other documents delivered pursuant to Sections 201 and 301 and this
Section, as applicable, in connection with the first authentication of a form of
Securities of such series and it shall not be necessary for the Company to
deliver such Opinion of Counsel and other documents (except as may be required
by the specified other procedures, if any, referred to above) at or prior to the
time of authentication of each Security of such series unless and until the
Trustee receives notice that such Opinion of Counsel or other documents have
been superseded or revoked, and may assume compliance with any conditions
specified in such Opinion of Counsel (other than any conditions to be performed
by the Trustee). If such form or forms or terms have been so established, the
Trustee shall not be required to authenticate 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 Security shall be dated the date of its authentication.
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No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, 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. 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 309 together with a written statement (which
need not comply with Section 102 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 304. Temporary Securities.
Pending the preparation of definitive Securities of any Series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of such
Securities.
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
like tenor of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series and of like tenor and of any
authorized denominations. 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 and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series
at the office or agency of the Company in any Place of Payment for such series,
the Company shall execute and the Trustee shall authenticate and deliver (in the
name of the designated transferee or transferees)
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one or more new Securities of the same series, of any authorized denominations
and of a like aggregate principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of a
like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at the office or agency of the Company in any Place of Payment for
such series. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities 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 Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
such Holder's 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 304, 906 or 1107 not involving any transfer.
The Company may but 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 the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
1103 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any Global Security shall be exchangeable pursuant
to this Section 305 for Securities registered in the name of Persons other than
the Depositary for such Security or its nominee only if (i) such Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for such Global Security or if at any time such Depositary 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 Global Security shall be so
exchangeable or (iii) there shall have occurred and be continuing an Event of
Default with respect to the Securities of such series. Upon the occurrence in
respect of any Global 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 301 for
such series, such Global Security may be exchanged for Securities not bearing
the legend specified in Section 205 and registered in the names of such Persons
as may be specified by the Depositary (including Persons other than the
Depositary).
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Notwithstanding any other provision of this Indenture (except the
provisions of the preceding paragraph), a Global Security may not be transferred
except as a whole by the Depositary for such Global Security to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
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 and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its written request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security 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.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any 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
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more Predecessor Securities) is registered in the Security Register at the close
of business on the Regular Record Date for such Interest Payment Date.
Any interest on any Security of any series which is payable but is not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest") 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 may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the 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 Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
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 mailed, first-class postage prepaid, to each Holder of Securities of
such series at such Holder's address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities 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).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which 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, 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.
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SECTION 308. Persons Deemed Owners.
Prior to due presentment of a 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 Security is registered in the Security Register as the
owner of such Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 307) interest on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its
behalf by a Depositary (or its nominee) shall have any rights under this
Indenture with respect to such Global Security or any Security represented
thereby, and such Depositary may be treated by the Company, the Trustee, and any
agent of the Company or the Trustee as the owner of such Global Security or any
Security represented thereby for all purposes whatsoever. 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 a
Depositary or impair, as between a Depositary and such holders of beneficial
interest, the operation of customary practices governing the exercise of the
rights of the Depositary (or its nominees) as Holder of any Security.
SECTION 309. Cancellation.
All Securities 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
and shall be promptly canceled by it. 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
canceled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be retained and destroyed by the Trustee.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 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 311. Payment to be in Proper Currency.
In the case of any Securities denominated in any currency (the "Required
Currency") other than United States of America dollars, except as otherwise
provided therein, the obligation
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of the Company to make any payment of principal, premium or interest thereon
shall not be discharged or satisfied by any tender by the Company, or recovery
by the Trustee, in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the Trustee timely holding
the full amount of the Required Currency then due and payable. If any such
tender or recovery is in a currency other than the Required Currency, the
Trustee may take such actions as it considers appropriate to exchange such
currency for the Required Currency. The costs and risks of any such exchange,
including without limitation the risks of delay and exchange rate fluctuation,
shall be borne by the Company, the Company shall remain fully liable for any
shortfall or delinquency in the full amount of Required Currency then due and
payable, and in no circumstances shall the Trustee be liable therefor except in
the case of its negligence or willful misconduct.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment 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 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) 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,
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and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount, in the currency in which such
Securities are payable, sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of Securities which
have become due and payable) or to the respective 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 607, the obligations of
the Trustee to any Authenticating Agent under Section 614, and, if money shall
have been deposited with the Trustee pursuant to Subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003, shall survive.
SECTION 402. Application of Trust Money.
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities 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 interest for whose payment such money has been deposited with the
Trustee but such money need not be segregated from other funds except to the
extent required by law.
SECTION 403. Defeasance and Discharge of Indenture.
If principal of and any premium and interest on Securities of any series
are denominated and payable in United States of America dollars, the Company
shall be deemed to have paid and discharged the entire indebtedness on all the
Outstanding Securities of such series on the 123rd day after the date of the
deposit referred to in subparagraph (d) hereof, and the provisions of this
Indenture, as it relates to such Outstanding Securities, shall no longer be in
effect (and the Trustee, at the expense of the Company, shall at Company
Request, execute proper instruments acknowledging the same), except as to:
(a) the rights of Holders of Securities to receive, from the trust
funds described in subparagraph (d) hereof, (i) payment of the principal of
(and premium, if any) or interest on the Outstanding Securities on the
Stated Maturity of such principal or installment of principal or interest
and (ii) the benefit of any mandatory sinking fund
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payments applicable to the Securities on the day on which such payments are
due and payable in accordance with the terms of this Indenture and the
Securities;
(b) the Company's obligations with respect to such Securities under
Sections 305, 306, 1002 and 1003; and
(c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder;
provided that, the following conditions shall have been satisfied:
(d) The Company has deposited or caused to be irrevocably deposited
with the Trustee (or another trustee satisfying the requirements of Section
609) as trust funds in the trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities, (i)
money in an amount, or (ii) U.S. Government Obligations which through the
payment of interest and principal in respect thereof in accordance with
their terms will provide not later than one day before the due date of any
payment referred to in clause (A) or (B) of this subparagraph (d) money in
an amount or (iii) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge (A) the principal of (and premium, if any) and each
installment of principal of (and premium, if any) and interest on the
Outstanding Securities on the Stated Maturity of such principal or
installment of principal and interest and (B) any mandatory sinking fund
payments applicable to the Securities on the day on which such payments are
due and payable in accordance with the terms of this Indenture and of the
Securities;
(e) such deposit shall not cause the Trustee with respect to the
Securities to have a conflicting interest as defined in Section 608 and for
purposes of the Trust Indenture Act with respect to the Securities;
(f) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(g) such provision would not cause any Outstanding Securities then
listed on the New York Stock Exchange or other securities exchange to be
de-listed as a result thereof;
(h) no Event of Default or event which with notice or lapse of time
would become an Event of Default with respect to the Securities shall have
occurred and be continuing on the date of such deposit or during the period
ending on the 123rd day after such date;
(i) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel to the effect that there has been a change in
applicable Federal law such that, or the Company has received from, or
there has been published by, the Internal
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Revenue Service a ruling to the effect that, Holders of the Securities will
not recognize income, gain or loss for Federal income tax purposes as a
result of such deposits, defeasance and discharge and will be subject to
Federal income tax on the same amount and in the same manner and at the
same times, as would have been the case if such deposit, defeasance and
discharge had not occurred; and
(j) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
relating to the defeasance contemplated by this Section have been complied
with.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, and unless otherwise provided with respect to Securities of any series
pursuant to Section 301(11), 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 any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) 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 a Security of that series, and continuance of such
default for a period of 30 days; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of a series of one or more 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 aggregate principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
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(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 by any
party other than the Company a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of all or substantially all of its property, or
ordering the winding up or liquidation of its affairs, and the continuance
of any such decree or order for relief specified in clause (A) or (B) 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 it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State bankruptcy or insolvency 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 other similar official of the Company or of all or
substantially all 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 as provided in Section 301(11).
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Outstanding Securities of any series
occurs and is continuing, then and in every such case the Trustee or the Holders
of not less than 25% in aggregate 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 lesser 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 portion thereof)
shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Outstanding 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
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aggregate principal amount of the Outstanding Securities of that series, by
written notice 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
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration of
acceleration and 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 any other amounts due the Trustee
under Section 607; and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any Security
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 at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Security, the whole amount then due and payable on such Security
for principal (and premium, if any) and interest and, to the extent that payment
of such interest shall be legally enforceable, interest on any overdue principal
(and premium, if any) and on any overdue interest at the rate or rates
prescribed therefor in such Security, 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.
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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 Security 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 Security, 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 by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
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 504. 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 all or substantially all of the property of the Company or of such
other obligor, 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 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
premium, if any) or such portion of the principal amount of any series of
Original Issue Discount 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 any other amounts due the Trustee
under Section 607) and of the Holders 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 to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities 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, and for any other amounts due
the Trustee under Section 607, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
SECTION 506. 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 premium,
if any) or interest, upon presentation of the Securities 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
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if
any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series 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;
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(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 60 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 60-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 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 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the Stated Maturity or Maturities expressed in such
Security (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 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
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 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be
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cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities 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 may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of a majority in aggregate 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 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of any series may, on behalf of the Holders of all
the Securities of such series, waive any past default hereunder with respect to
such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected;
provided that, a majority in aggregate principal amount of Outstanding
- --------
Securities may rescind and annul a declaration of payment due as provided in
Section 502.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to waive any past default hereunder.
If a record date is fixed, the
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Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to waive any default hereunder, whether or not such
Holders remain Holders after such record date; provided, that unless such
majority in principal amount shall have waived such default prior to the date
which is 90 days after such record date, any such waiver of such default
previously given shall automatically and without further action by any Holder be
canceled and of no further effect.
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 impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
such Holder's 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; provided,
however, that 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 for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security on or after the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 515. 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 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.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The provisions of TIA Section 315 shall apply to the Trustee.
SECTION 602. 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 by mail to all
Holders of Securities of such series, as their names and addresses appear in the
Security Register, 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
provided, further, that in the case of any default of the character specified in
Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of TIA Section 315(a) through 315(d):
(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, 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;
(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;
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(d) the Trustee may consult with counsel and the written 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 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, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such fact 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;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion, rights or powers conferred upon it by this Indenture; and
(i) the Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or powers 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.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, 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. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
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SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities 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 606. 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 interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
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);
(2) except as otherwise expressly provided herein, to reimburse the
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 reasonable 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 or bad
faith; and
(3) to indemnify the Trustee and its agents for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of 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 obligations of the Company under this Section 607 to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be a senior claim to that of the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of (and premium, if any) or interest
on particular Securities, and the Securities are hereby subordinated to such
senior claim.
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SECTION 608. Disqualification; Conflicting Interests.
The provisions of TIA Section 310(b) shall apply to the Trustee.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be eligible to
act under TIA Section 310(a)(1) and shall have a combined capital and surplus of
at least $50,000,000 and subject to supervision or examination by Federal, State
or District of Columbia authority. If such Corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. 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. Neither
the Company, nor any Person directly or indirectly controlling, controlled by or
under common control with the Company, shall act as Trustee hereunder.
SECTION 610. 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 611.
(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 611 shall
not have been delivered to the Trustee within 90 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.
(d) If at any time:
(1) the Trustee shall fail to comply with TIA Section 310(b) 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
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
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(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 Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee 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 611. 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 the 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 611, 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 and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the 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 by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses appear in the
Security Register. 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 611. 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
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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 accept such appointment and which (1) 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 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. Whenever there is a successor Trustee with
respect to one or more (but less than all) series of securities issued pursuant
to this Indenture, the terms "Indenture" and "Securities" shall have the
meanings specified in the provisos to the respective definitions of those terms
in Section 101 which contemplate such situation.
(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) and (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 612. 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 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; in case
any of the Securities shall not have been authenticated by the Trustee then in
office, any successor by merger, conversion or consolidation to such Trustee may
authenticate such Securities either in the name of such 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 only to its successor or successors by merger, conversion or
consolidation.
SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a). A Trustee which has
resigned or been removed is subject to TIA Section 311(a) to the extent
indicated therein.
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the Trustee, with
the concurrence of the Company, 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, 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 and shall at all times be a Corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal, State or District of Columbia
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said 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
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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 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 an 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 the 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 mail written notice of
such appointment by first class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. 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 alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated herein and issued
pursuant to the within-mentioned Indenture.
___________________
as Trustee
By_______________________________
As Authenticating Agent
By_______________________________
Authorized Officer
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
If the Trustee is not acting as Security Registrar for the Securities of
any series, the Company will furnish or cause to be furnished to the Trustee.
(a) at intervals of no more than six months commencing after the first
issue of such series, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of a date not more
than 15 days prior to the time such information is furnished, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by TIA Section
312(b).
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
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 Section 702(b), 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 Section 702(b).
SECTION 703. Reports by Trustee.
Within 60 days after May 1 of each year commencing with the later of May 1,
1996 or the first May 1 after the first issuance of Securities pursuant to this
Indenture, the Trustee shall transmit by mail to all Holders of Securities as
provided in TIA Section 313(c) a brief report dated as of such May 1 if required
by TIA Section 313(a). A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
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which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. 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
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said 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 Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(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 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;
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, 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 paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission; and
(4) furnish to the Trustee, within 120 days after the end of each
fiscal year of the Company ending after the date hereof, a brief
certificate of the Company's principal executive officer, principal
financial officer or principal accounting officer as to his or her
knowledge of the Company's compliance with all conditions and covenants
under this Indenture. For purposes of this paragraph, such compliance shall
be determined without regard to any period of grace or requirement of
notice provided under this Indenture.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person unless: (1) the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety 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 shall expressly assume, 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 premium,
if any) and interest on all the Securities and the performance or observance 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 and treating
any indebtedness which becomes an obligation of the Company or any Subsidiary as
a result of such transaction as having been incurred by the Company or such
Subsidiary at the time of 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, transfer or lease and supplemental
indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger by the Company into,
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, 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.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, 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 one or
more specified series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional 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 one or more specified series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) shall become effective only when there is no such Security
Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or
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facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 611(b); or
(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 such action shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
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 any 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 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 such Security, or reduce
the principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the principal
of an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502, or change any Place of Payment where, or the coin or currency in
which, any such Security or any premium or the interest thereon is payable,
or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment, on or after the Redemption Date or any repayment
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
(3) modify any of the provisions of this Section 902, Section 513 or
Section 1010, 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 with respect to changes in the references to "the
Trustee" and concomitant changes in this Section 902 and Section 1010, or
the deletion of this proviso, in accordance with the requirements of
Sections 611(b) and 901(8).
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A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of 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.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed for such purpose, the Holders on
such record date or their duly designated proxies, and only such Persons, shall
be entitled to consent to such supplemental indenture, whether or not such
Holders remain Holders after such record date; provided, that unless such
consent shall have become effective by virtue of the requisite percentage having
been obtained prior to the date which is 90 days after such record date, any
such consent previously given shall automatically and without further action by
any Holder be canceled and of no further effect.
It shall not be necessary for any Act of Holders 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 903. 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 601) 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 904. 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
shall be bound thereby to the extent provided therein.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
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SECTION 906. Reference in Securities to Supplemental Indentures.
Securities 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 a 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 prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security so
affected, pursuant to Section 106, setting forth in general terms the substance
of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. 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 premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture. In the absence of contrary
provisions with respect to the Securities of any series, interest on the
Securities of any series may, at the option of the Company, be paid by check
mailed to the address of the Person entitled thereto as it appears on the
Security Register.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities 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. The Company will give prompt written notice to the Trustee of the
location and any change in the location of such office or agency. If at any time
the Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
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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 each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
SECTION 1003. 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 premium, if any) 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 in the currency in which such series of Securities is payable
sufficient to pay the principal (and premium, if any) or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided or will promptly notify the Trustee of its 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 premium, if
any) or interest on any Securities of that series, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) 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, or (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its 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 premium, if any) 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 (and premium, if any) 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
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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, 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 premium, if any)
or interest on any Security of any series and remaining unclaimed for two years
after such principal (and premium, if any) 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
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 a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, 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 on Company
Request.
SECTION 1004. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
corporate rights (charter and statutory) and corporate 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 1005. Maintenance of Properties.
The Company will cause all Principal Properties used or useful in the
conduct of its business to be maintained and kept in good condition, repair and
working order and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance or selling or disposing of any of such Principal
Properties if such discontinuance, sale or disposition is, in the judgment of
the Company, desirable in the conduct of its business and not disadvantageous in
any material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent and a lien upon its property: (1) all taxes,
assessments and
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governmental charges levied or imposed upon it or upon its income, profits or
property, and (2) all lawful claims for labor, materials and supplies upon its
property; provided, however, that the Company shall not be required to pay or
-------- -------
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith.
SECTION 1007. Restriction on Secured Debt.
(a) The Company will not itself, and will not permit any Restricted
Subsidiary to, incur, issue, assume or guarantee any notes, bonds, debentures or
other similar evidences of indebtedness for money borrowed (notes, bonds,
debentures or other similar evidences of indebtedness for money borrowed being
hereinafter in this Article called "Debt"), secured by pledge of, or mortgage or
other lien on, any Principal Property, now owned or hereafter owned by the
Company or any Restricted Subsidiary, or any shares of stock or Debt of any
Restricted Subsidiary held by or owed to the Company (any such pledges,
mortgages and other liens being hereinafter in this Article called "Lien" or
"Liens"), without effectively providing that the Securities of each series then
Outstanding (together with, if the Company shall so determine, any other Debt of
the Company or such Restricted Subsidiary then existing or thereafter created
which is not subordinate to the Securities of each series then Outstanding)
shall be secured equally and ratably with (or prior to) such secured Debt, so
long as such secured Debt shall be so secured; provided, however, that this
Section shall not apply to, and there shall be excluded from secured Debt in any
computation under this Section, Debt secured by:
(1) Liens existing on the date of this Indenture;
(2) Liens on any Principal Property acquired, constructed or improved
by the Company or any Restricted Subsidiary after the date of this
Indenture which are created or assumed contemporaneously with such
acquisition, construction or improvement, or within 120 days before or
after the completion thereof, to secure or provide for the payment of all
or any part of the cost of such acquisition, construction or improvement
(including related expenditures capitalized for Federal income tax purposes
in connection therewith) incurred after the date of this Indenture;
(3) Liens of or upon any property, shares of capital stock or Debt
existing at the time of acquisition thereof, whether by merger,
consolidation, purchase, lease or otherwise (including Liens of or upon
property, shares of capital stock or indebtedness of a corporation existing
at the time such corporation becomes a Restricted Subsidiary);
(4) Liens in favor of the Company or any Restricted Subsidiary;
(5) Liens in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof or
political entity affiliated therewith, or in favor of any other country, or
any political subdivision thereof, to secure partial, progress, advance or
other payments, or other obligations, pursuant to any contract or statute
or to secure any
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Debt incurred for the purpose of financing all or any part of the cost of
acquiring, constructing or improving the property subject to such Liens
(including Liens incurred in connection with pollution control, industrial
revenue or similar financings);
(6) Liens imposed by law, such as mechanics', workmen's, repairmen's,
materialmen's, carriers', warehousemen's, vendors' or other similar liens
arising in the ordinary course of business, or governmental (federal, state
or municipal) liens arising out of contracts for the sale of products or
services by the Company or any Restricted Subsidiary, or deposits or
pledges to obtain the release of any of the foregoing;
(7) pledges or deposits under workmen's compensation laws or similar
legislation and Liens of judgments thereunder which are not currently
dischargeable, or good faith deposits in connection with bids, tenders,
contracts (other than for the payment of money) or leases to which the
Company or any Restricted Subsidiary is a party, or deposits to secure
public or statutory obligations of the Company or any Restricted
Subsidiary, or deposits in connection with obtaining or maintaining
self-insurance or to obtain the benefits of any law, regulation or
arrangement pertaining to unemployment insurance, old age pensions, social
security or similar matters, or deposits of cash or obligations of the
United States of America to secure surety, appeal or customs bonds to which
the Company or any Restricted Subsidiary is a party, or deposits in
litigation or other proceedings such as, but not limited to, interpleader
proceedings;
(8) Liens created by or resulting from any litigation or other
proceeding which is being contested in good faith by appropriate
proceedings, including Liens arising out of judgments or awards against the
Company or any Restricted Subsidiary with respect to which the Company or
such Restricted Subsidiary is in good faith prosecuting an appeal or
proceedings for review or the time to appeal or petition for rehearing has
not expired; or Liens incurred by the Company or any Restricted Subsidiary
for the purpose of obtaining a stay or discharge in the course of any
litigation or other proceeding to which the Company or such Restricted
Subsidiary is a party;
(9) Liens for taxes or assessments or governmental charges or levies
not yet due or delinquent, or which can thereafter be paid without penalty,
or which are being contested in good faith by appropriate proceedings;
(10) Liens consisting of easements, rights-of-way, zoning
restrictions, restrictions on the use of real property, and defects and
irregularities in the title thereto, landlords' liens and other similar
liens and encumbrances which, other than liens resulting from action of any
governmental authority, do not interfere materially with the use of the
property covered thereby in the ordinary course of the business of the
Company or such Restricted Subsidiary and do not, in the opinion of the
Company, materially detract from the value of such properties;
(11) Liens arising in the ordinary course of business in connection
with obligations that are not overdue or which are being contested in good
faith and by
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appropriate proceedings, including, but not limited to, Liens under bid,
performance and other surety bonds, supersedeas and appeal bonds, Liens on
advance or progress payments received from customers under contracts for
the sale, lease or license of goods, software or services and upon the
products being sold or licensed, in each case securing performance of the
underlying contract or the repayment of such advances in the event final
acceptance or performances under such contracts does not occur;
(12) Liens arising solely by virtue of any statutory or common law
provision relating to bankers' liens, rights of set-off or similar rights
and remedies as to deposit accounts or other funds maintained with a
creditor depository institution; or
(13) any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Lien referred to
in the foregoing clauses (1) to (10), inclusive; provided, that (i) such
extension, renewal or replacement Lien shall be limited to all or a part of
the same property, shares of stock or Debt that secured the Lien extended,
renewed or replaced (plus improvements on such property) and (ii) the Debt
secured by such Lien at such time is not increased.
(b) Notwithstanding the restrictions contained in subdivision (a) of this
Section, the Company and its Restricted Subsidiaries, or any of them, may incur,
issue, assume or guarantee Debt secured by Liens without equally and ratably
securing the Securities of each series then Outstanding, provided, that at the
time of such incurrence, issuance, assumption or guarantee, after giving effect
thereto and to the retirement of any Debt which is concurrently being retired,
the aggregate amount of all outstanding Debt secured by Liens which could not
have been incurred, issued, assumed or guaranteed by the Company or a Restricted
Subsidiary without equally and ratably securing the Securities of each series
then Outstanding except for the provisions of this subdivision (b), together
with the aggregate amount of all Attributable Debt incurred pursuant to Section
1008(b), does not at such time exceed the greater of (a) 25% of Consolidated Net
Tangible Assets of the Company or (b) $30,000,000.
SECTION 1008. Restriction on Sale and Leaseback Transactions.
(a) The Company will not itself, and it will not permit any Restricted
Subsidiary to, enter into any arrangement with any bank, insurance company or
other lender or investor (not including the Company or any Subsidiary) or to
which any such lender or investor is a party, providing for the leasing by the
Company or a Restricted Subsidiary for a period, including renewals, in excess
of three years of any Principal Property which has been or is to be sold or
transferred by the Company or any Restricted Subsidiary to such lender or
investor or to any person to whom funds have been or are to be advanced by such
lender or investor on the security of such Principal Property (herein referred
to as a "Sale and Leaseback Transaction") unless either:
(1) The Company or such Restricted Subsidiary would, at the time of
entering into such arrangement, be entitled, without equally and ratably
securing the Securities of
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each series then Outstanding, to incur Debt secured by a Lien on such
property, pursuant to paragraphs (1) to (11), inclusive, of Section 1007;
or
(2) the Company within 120 days after the sale or transfer shall have
been made by the Company or by a Restricted Subsidiary, applies an amount
equal to the greater of (i) the net proceeds of the sale of the Principal
Property sold and leased back pursuant to such arrangement or (ii) the fair
market value of the Principal Property so sold and leased back at the time
of entering into such arrangement (as determined by any two of the
following: the Chairman of the Board of the Company, its President, its
Chief Financial Officer, its Chief Operating Officer, its Treasurer or its
Vice President, General Counsel) to the retirement of Funded Debt of the
Company; provided, that the amount to be applied to the retirement of
Funded Debt of the Company shall be reduced by (A) the principal amount of
any Securities delivered within 120 days after such sale to the Trustee for
retirement and cancellation, and (B) the principal amount of Funded Debt,
other than Securities, voluntarily retired by the Company within 120 days
after such sale. Notwithstanding the foregoing, no retirement referred to
in this clause (a)(2) may be effected by payment at maturity or pursuant to
any mandatory sinking fund payment or mandatory prepayment provision.
(b) Notwithstanding the restrictions contained in subdivision (a) of this
Section, the Company and its Restricted Subsidiaries, or any of them, may enter
into a Sale and Leaseback Transaction, provided, that at the time of such
transaction, after giving effect thereto, the aggregate amount of all
Attributable Debt in respect of Sale and Leaseback Transactions existing at such
time which could not have been entered into except for the provisions of this
subdivision (b), together with the aggregate amount of all outstanding Debt
incurred pursuant to Section 1007(b), does not at such time exceed the greater
of (a) 25% of Consolidated Net Tangible Assets of the Company or (b)
$30,000,000.
(c) A Sale and Leaseback Transaction shall not be deemed to result in the
creation of a Lien.
SECTION 1009. Defeasance of Certain Obligations.
The following provisions shall apply to the Securities of each series
unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to Section 301.
The Company may omit to comply with any term, provision or condition set forth
in Sections 1005, 1006, 1007 and 1008, and any such omission with respect to
Sections 1005, 1006, 1007 and 1008 shall not be an Event of Default, in each
case with respect to the Securities of that series, provided that the following
conditions have been satisfied:
(1) with reference to this Section 1009, the Company has deposited or
caused to be irrevocably deposited with the Trustee (or another trustee
satisfying the requirements of Section 609) as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of the Securities of that series, (i) money in an amount, or
(ii) U.S. Government Obligations which through the payment
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of interest and principal in respect thereof in accordance with their terms
will provide not later than one day before the due date of any payment
referred to in clause (A) or (B) of this subparagraph (1) money in an
amount, or (iii) 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 (A) the principal of (and premium, if any) and each installment
of principal of (and premium, if any) and interest on the Outstanding
Securities on the Stated Maturity of such principal or installments of
principal and interest and (B) any mandatory sinking fund payments or
analogous payments applicable to the Securities of such series on the day
on which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities;
(2) such deposit shall not cause the Trustee with respect to the
Securities of that series to have a conflicting interest as defined in
Section 608 and for purposes of the Trust Indenture Act with respect to the
Securities of any series;
(3) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any material agreement or
instrument to which the Company is a party or by which it is bound;
(4) such deposit will not cause any Outstanding Securities then
listed on the New York Stock Exchange or other securities exchange to be
de-listed as a result thereof;
(5) no Event of Default under Sections 501(6) or (7) or event which
with notice or lapse of time would become an Event of Default under
Sections 501(6) or (7) with respect to the Securities of that series shall
have occurred and be continuing on the date of such deposit;
(6) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that Holders of the 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 amount and in the same manner and at the
same times as would have been the case if such deposit and defeasance had
not occurred; and
(7) 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 defeasance contemplated in this Section
have been complied with.
SECTION 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1004 to 1008, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
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waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to waive any such term, provision or
condition. If a record date is fixed for such purpose, the Holders on such
record date or their duly designated proxies, and only such Persons, shall be
entitled to waive any such term, provision or condition hereunder, whether or
not such Holders remain Holders after such record date; provided that unless the
Holders of not less than a majority in principal amount of the Outstanding
Securities of such series shall have waived such term, provision or condition
prior to the date which is 90 days after such record date, any such waiver
previously given shall automatically and without further action by any Holder be
canceled and of no further effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. 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 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
an Officers' Certificate. The Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of
(1) such Redemption Date,
(2) if the Securities of such series have different terms and less
than all of the Securities of such series are to be redeemed, the terms of
the Securities to be redeemed, and
(3) if less than all the Securities of such series with identical
terms are to be redeemed, the principal amount of such Securities to be
redeemed.
In the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company
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shall furnish the Trustee with an Officers' Certificate evidencing compliance
with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of like tenor 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 like tenor 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 like tenor 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.
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.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at each such Holder's address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of like tenor 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,
(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 are to be surrendered
for payment of the Redemption Price, and
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(6) that the redemption is for a sinking fund, if such is the case.
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 1105. Deposit of Redemption Price.
On or 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 1003) an amount of
money in immediately available funds 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 1106. 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. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest 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 Securities, registered as such at the
close of business on the relevant Regular Record Dates according to their terms
and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed in part shall be surrendered at a
Place of Payment for such series (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 deliver to the Holder of such
Security without service charge, a new 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; provided, however, that
if a Global Security is so surrendered, such new Security so issued shall be a
new Global Security in a denomination equal to the unredeemed portion of the
principal of the Global Security so surrendered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. 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 301 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". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. 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 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of like tenor of a
series (other than any previously called for redemption) and (2) may apply as a
credit Securities of like tenor 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 like tenor 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.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
Securities of like tenor of a series, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for such Securities pursuant to the terms of such Securities, 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 like tenor of that series pursuant to Section 1202 and, at the
time of delivery of such Officers' Certificate, will also deliver to the Trustee
any Securities to be so delivered. If no such notice shall be delivered by the
Company, such sinking fund payment shall be satisfied by payment of cash. 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
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Section 1103 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 1104.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 1106 and 1107.
This instrument 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 instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed and attested, and in the case of the Trustee its corporate seal to
be hereunto affixed, all as of the day and year first above written.
JOSTENS, INC.
By /s/ William N Priesmeyer
---------------------------
William N Priesmeyer
Senior Vice President and
Chief Financial Officer
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By /s/ Jane Schweiger
----------------------
Jane Schweiger
Corporate Trust Officer
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EXHIBIT 4.2
JOSTENS, INC.
Medium-Term Notes, Series A
Officers' Certificate and Company Order
Pursuant to the Indenture dated as of August 30, 1999 (the
"Indenture"), between Jostens, Inc. (the "Company") and Norwest Bank Minnesota,
National Association, as Trustee (the "Trustee"), resolutions adopted by the
Company's Board of Directors on, July 22, 1999, this Officers' Certificate and
Company Order is being delivered to the Trustee to establish the terms of a
series of Securities in accordance with Section 301 of the Indenture, to
establish the forms of the Securities of such series in accordance with Section
201 of the Indenture, and to establish the procedures for the authentication and
delivery of specific Securities from time to time pursuant to Section 303 of the
Indenture.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in the Indenture.
All conditions precedent provided for in the Indenture relating to the
establishment of (i) a series of Securities, (ii) the forms of such series of
Securities and (iii) the procedures for the authentication and delivery of such
series of Securities have been complied with.
A. Establishment of Series pursuant to Section 301 of Indenture.
------------------------------------------------------------
There is hereby established pursuant to Section 301 of the Indenture a
series of Securities which shall have the following terms:
(1) The Securities of such series shall bear the title "Medium-Term
Notes, Series A" (referred to herein as the "Notes").
(2) There shall be no limitation on the aggregate principal amount of
the Notes of such series, however, unless otherwise specified in an
Authentication Certificate (as defined in Section C below), the aggregate
principal amount of the Notes of such series to be issued pursuant to this
Officers' Certificate is limited to $200,000,000 or the equivalent thereof in
foreign currencies or foreign currency units (except for Notes authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Notes of such series pursuant to Section 304, 305, 306, 906 or 1107 of the
Indenture and except for any Notes which, pursuant to Section 303 of the
Indenture, are deemed never to have been authenticated and delivered thereunder)
as such amount may be reduced by the issuance of other series of the Securities.
<PAGE>
(3) Interest will be payable to the person in whose name a Note (or
any predecessor Note) is registered at the close of business on the Regular
Record Date (as defined below) next preceding each Interest Payment Date (as
defined below); provided, however, that interest payable on the stated maturity
thereof or upon redemption or repayment (other than interest payable on a
Maturity Date or any applicable redemption date or repayment date that is also
an Interest Payment Date) will be payable to the person to whom principal shall
be payable. The first payment of any interest on any Note originally issued
after a Regular Record Date and on or before an Interest Payment Date will be
made on the Interest Payment Date following the next succeeding Regular Record
Date to the registered holder on such next succeeding Regular Record Date. Any
interest which is payable, but not punctually paid or duly provided for, on any
Interest Payment Date will be payable to the person and in the manner specified
in Section 307 of the Indenture.
(4) Unless previously redeemed or repaid, each Note within such
series shall mature on the date 9 months to 30 years from its date of issue as
specified in such Note and in the applicable Authentication Certificate or if
such Note is a Floating Rate Note (as defined below) and such specified date is
not a Business Day (as defined below) with respect to such Note, the next
succeeding Business Day (or in the case of a LIBOR Note (as defined below), if
such next succeeding Business Day falls in the next calendar month, the next
preceding Business Day). If the maturity date specified in such Note and in the
applicable Authentication Certificate for any Fixed Rate Note is a day that is
not a Business Day, principal will be paid on the next succeeding Business Day
with the same force and effect as if made on such specified maturity date.
"Business Day" means (a) with respect to any Note, any day that is not a
Saturday or Sunday and that in the City of New York is not a day on which
banking institutions generally are authorized or obligated by law or executive
order to close (and with respect to LIBOR Notes is a day in which dealings in
deposits in the relevant Specified Currency (as defined below) are transacted in
the London interbank market) and (b) with respect to Foreign Currency Notes (as
defined below) only, any day that, in the Principal Financial Center (as defined
below) of the country of the currency in which such Notes are denominated, is
not a day on which banking institutions generally are authorized or obligated by
law to close (which in the case of Foreign Currency Notes denominated in
European Currency Units ("ECUs") shall be Luxembourg, in which case "Business
Day" shall not include any day that is a non-ECU clearing day as determined by
the ECU Banking Association in Paris).
(5) Each Note within such series that bears interest will bear
interest at either (a) a fixed rate (the "Fixed Rate Notes"), (b) an indexed
rate (the "Indexed Notes") or (c) a floating rate determined by reference to one
or more interest rate formulas, which may be adjusted by a Spread and/or Spread
Multiplier (each as defined below), and, if so specified in the applicable
Authentication Certificate with respect to one or more Interest Periods (as
defined below), one or more fixed rates (the "Floating Rate Notes"). Notes
within such series may also be issued as "Zero Coupon Notes" which do not
provide for any periodic payments of interest. Notes may be issued as Original
Issue Discount Notes at a discount from the principal amount thereof due at the
stated maturity as specified in the applicable Authentication Certificate. Any
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Floating Rate Note may also have either or both of the following as set forth in
the applicable Authentication Certificate: (i) a maximum interest rate
limitation, or ceiling, on the rate of interest which may accrue during any
Interest Period; and (ii) a minimum interest rate limitation, or floor, on the
rate of interest which may accrue during any Interest Period. The applicable
Authentication Certificate may designate any of the following interest rate
formulas as applicable to one or more Interest Periods on each Floating Rate
Note: (a) the Commercial Paper Rate, in which case such Note will be a
"Commercial Paper Rate Note" with respect to such Interest Period or Interest
Periods; (b) the Federal Funds Rate, in which case such Note will be a "Federal
Funds Rate Note" with respect to such Interest Period or Interest Periods; (c)
LIBOR, in which case such Note will be a "LIBOR Note" with respect to such
Interest Period or Interest Periods; (d) the Prime Rate, in which case such Note
will be a "Prime Rate Note" with respect to such Interest Period or Interest
Periods; (e) the CD Rate, in which case such Note will be a "CD Rate Note" with
respect to such Interest Period or Interest Periods; (f) the Treasury Rate, in
which case such Note will be a "Treasury Rate Note" with respect to such
Interest Period or Interest Periods; (g) the CMT Rate, in which case such Note
will be a " CMT Rate Note" with respect to such Interest Period or Interest
Periods; or (h) such other interest rate formula as set forth in the applicable
Authentication Certificate.
The interest rate on each Floating Rate Note for each Interest Period
will be determined by reference to (i) the applicable interest rate formula
specified in the applicable Authentication Certificate for such Interest Period,
plus or minus the applicable Spread, if any, and/or multiplied by the applicable
Spread Multiplier, if any, or (ii) the applicable fixed rate per annum specified
in the applicable Authentication Certificate for such Interest Period. The
"Spread" is the number of basis points specified in the applicable
Authentication Certificate as being applicable to such Floating Rate Note for
such Interest Period, and the "Spread Multiplier" is the percentage specified in
the applicable Authentication Certificate as being applicable to such Floating
Rate Note for such Interest Period.
Each Note that bears interest will bear interest from and including
its date of issue or from and including the most recent Interest Payment Date
(as defined below) to which interest on such Note (or any predecessor Note) has
been paid or duly provided for (i) at the fixed rate per annum applicable to the
related Interest Period or Interest Periods, (ii) at the rate determined
pursuant to the applicable index or (iii) at a rate per annum determined
pursuant to the interest rate formula applicable to the related Interest Period,
in each case as specified therein and in the applicable Authentication
Certificate, until the principal thereof is paid or made available for payment.
Interest will be payable on each Interest Payment Date and at the stated
maturity thereof or upon repayment or redemption. The first payment of interest
on any Note originally issued after a Regular Record Date and on or before an
Interest Payment Date will be made on the Interest Payment Date following the
next succeeding Regular Record Date to the registered holder on such next
succeeding Regular Record Date. Interest rates and interest rate formulas are
subject to change by the Company from time to time but no such change will
affect any Note theretofore issued or which the Company has agreed to issue.
Unless otherwise specified in the applicable Authentication Certificate, the
"Interest Payment Dates" and the "Regular Record
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Dates" for Fixed Rate Notes shall be as described below under "Fixed Rate Notes"
and the "Interest Payment Dates" and the "Regular Record Dates" for Floating
Rate Notes shall be as described below under "Floating Rate Notes."
The interest rate on a Note for any Interest Period will in no event
be higher than the maximum rate permitted by New York law as the same may be
modified by United States law of general application.
The applicable Authentication Certificate will specify: (i) the issue
price, Interest Payment Dates and Regular Record Dates; (ii) with respect to any
Fixed Rate Note, the interest rate; (iii) with respect to any Indexed Note, the
index; (iv) with respect to any Floating Rate Note, the Initial Interest Rate
(as defined below), the method (which may vary from Interest Period to Interest
Period) of calculating the interest rate applicable to each Interest Period
(including, if applicable, the fixed rate per annum applicable to one or more
Interest Periods, the period to maturity of any instrument on which the interest
rate formula for any Interest Period is based (the "Index Maturity"), the Spread
and/or Spread Multiplier, the Interest Determination Dates (as defined below),
the Interest Reset Dates (as defined below) and any minimum or maximum interest
rate limitations); (v) whether such Note is an Original Issue Discount Note; and
(vi) any other terms consistent with the Indenture.
Fixed Rate Notes
----------------
Each Fixed Rate Note, whether or not issued as an Original Issue
Discount Note, will bear interest at the annual rate specified therein and in
the applicable Authentication Certificate. Unless otherwise specified in the
applicable Authentication Certificate, the Interest Payment Dates for the Fixed
Rate Notes will be on February 15 and August 15 of each year and at maturity and
the Regular Record Dates for the Fixed Rate Notes will be on the February 1 and
August 1 preceding the February 15 and August 15 payment dates (whether or not a
Business Day). Unless otherwise specified in the applicable Authentication
Certificate, interest payments for Fixed Rate Notes shall be the amount of
interest accrued from, and including, the next preceding Interest Payment Date
to which interest has been paid or duly provided for (or from, and including,
the date of issue if no interest has been paid or duly provided for with respect
to such Fixed Rate Note) to, but excluding the relevant Interest Payment Date.
Interest on Fixed Rate Notes will be computed and paid on the basis of a 360-day
year of twelve 30-day months. In the event that any Interest Payment Date or any
applicable Redemption Date or Repayment Date (as defined below) on a Fixed Rate
Note is not a Business Day, interest, and in the case of any redemption or
repayment, principal, will be paid on the next succeeding Business Day with the
same force and effect as if made on such Interest Payment Date or Redemption
Date shall be postponed to the next day that is a Business Day.
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Floating Rate Notes
-------------------
The Interest Payment Dates for the Floating Rate Notes shall be as
specified in such Notes and in the applicable Authentication Certificate, and,
unless otherwise specified in the applicable Authentication Certificate, the
Regular Record Dates for the Floating Rate Notes will be on the day (whether or
not a Business Day) fifteen calendar days preceding each Interest Payment Date.
Unless otherwise specified in the applicable Authentication Certificate and
except as provided below, interest on Floating Rate Notes will be payable on the
following Interest Payment Dates: in the case of Floating Rate Notes with a
daily, weekly or monthly Interest Reset Date, on the third Wednesday of each
month or on the third Wednesday of March, June, September and December of each
year; in the case of Floating Rate Notes with a quarterly Interest Reset Date,
on the third Wednesday of March, June, September and December of each year; in
the case of Floating Rate Notes with a semi-annual Interest Reset Date, on the
third Wednesday of the two months of each year specified in the applicable
Authentication Certificate; and in the case of Floating Rate Notes with an
annual Interest Reset Date, on the third Wednesday of the month of each year
specified in the applicable Authentication Certificate, and in each case at
maturity or upon repayment or redemption. In the event that any Interest
Payment Date or any applicable Redemption Date or Repayment Date for any
Floating Rate Note is not a Business Day, such Interest Payment Date, Redemption
Date or Repayment Date shall be postponed to the next day that is a Business
Day, except that, in the case of a LIBOR Note, if such Business Day is in the
next succeeding calendar month, such Interest Payment Date or Redemption Date
shall be the immediately preceding Business Day.
The rate of interest on each Floating Rate Note will be reset daily,
weekly, monthly, quarterly, semi-annually or annually (the date on which each
such reset occurs, an "Interest Reset Date"), as specified in the applicable
Authentication Certificate. Unless otherwise specified in the applicable
Authentication Certificate, the Interest Reset Date will be as follows: in the
case of Floating Rate Notes which are reset daily, each Business Day; in the
case of Floating Rate Notes (other than Treasury Rate Notes) which are reset
weekly, the Wednesday of each week; in the case of Treasury Rate Notes which are
reset weekly, the Tuesday of each week (except if the auction date falls on a
Tuesday, then the next Business Day, as provided below); in the case of Floating
Rate Notes which are reset monthly, the third Wednesday of each month; in the
case of Floating Rate Notes which are reset quarterly, the third Wednesday of
March, June, September and December of each year; in the case of Floating Rate
Notes which are reset semi-annually, the third Wednesday of the two months of
each year specified in the applicable Authentication Certificate; and in the
case of Floating Rate Notes which are reset annually, the third Wednesday of the
month of each year specified in the applicable Authentication Certificate.
Unless otherwise specified in the applicable Authentication
Certificate, the interest rate determined with respect to any Interest
Determination Date will become effective on and as of the next succeeding
Interest Reset Date; provided, however, that (i) the interest rate in effect
from the date of issue to the first Interest Reset Date with respect to a
Floating Rate Note
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(the "Initial Interest Rate") will be as specified in the applicable
Authentication Certificate and (ii) the interest rate in effect for the 10 days
immediately prior to maturity will be that in effect on the tenth day preceding
such maturity. If any Interest Reset Date for any Floating Rate Note would
otherwise be a day that is not a Business Day, such Interest Reset Date shall be
postponed to the next day that is a Business Day, except that in the case of a
LIBOR Note, if such Business Day is in the next succeeding calendar month, such
Interest Reset Date shall be the immediately preceding Business Day.
As used herein, "Interest Determination Date" means the date as of
which the interest rate for a Floating Rate Note is to be calculated, to be
effective as of the following Interest Reset Date and calculated on the related
Calculation Date (as defined below). Unless otherwise specified in the
applicable Authentication Certificate, the Interest Determination Date
pertaining to any Interest Reset Date for a Commercial Paper Rate Note, a
Federal Funds Rate Note, a Prime Rate Note, a CD Rate Note, or a CMT Rate Note
(the "Commercial Paper Interest Determination Date," the "Federal Funds Interest
Determination Date," the "Prime Interest Determination Date," the "CD Interest
Determination Date," and the "CMT Interest Determination Date," respectively)
will be the second Business Day prior to such Interest Reset Date. Unless
otherwise specified in the applicable Authentication Certificate, the Interest
Determination Date pertaining to an Interest Reset Date, for a LIBOR Note (the
"LIBOR Interest Determination Date") will be the second London banking day
preceding that Interest Reset Date. Unless otherwise specified in the applicable
Authentication Certificate, the Interest Determination Date pertaining to an
Interest Reset Date for a Treasury Rate Note (the "Treasury Interest
Determination Date") will be the day of the week on which Treasury bills would
normally be auctioned in the week in which such Interest Reset Date falls. If,
as the result of a legal holiday, an auction for Treasury bills is held on the
Friday preceding the normal Monday auction date, such Friday will be the
Treasury Interest Determination Date pertaining to the Interest Reset Date
occurring in the next succeeding week. If an auction date shall fall on any
Interest Reset Date for a Treasury Rate Note, then such Interest Reset Date
shall instead be the first Business Day immediately following such auction date.
The Interest Determination Date pertaining to a Floating Rate Note the interest
rate of which is determined by reference to two or more Interest Rate Bases will
be the latest Business Day which is at least two Business Days prior to such
Interest Reset Date for such Floating Rate Note on which each Interest Rate
Basis is determinable.
Unless otherwise specified in the applicable Authentication
Certificate, interest payments on an Interest Payment Date for a Floating Rate
Note will include interest accrued from, and including, the next preceding
Interest Payment Date to which interest has been paid or duly provided for (or
from, and including, the date of issue if no interest has been paid or duly
provided for with respect to such Floating Rate Note) to, but excluding, such
Interest Payment Date (each such interest accrual period, an "Interest Period").
Accrued interest from the date of issue or from the last date to which interest
has been paid or duly provided for to the date for which interest is being
calculated shall be calculated by multiplying the face amount of a Floating Rate
Note by the applicable accrued interest factor (the "Accrued Interest Factor").
The Accrued
6
<PAGE>
Interest Factor shall be computed by adding together the interest factors
calculated for each day from the date of issue, or from the last date to which
interest has been paid or duly provided for to, but excluding, the date for
which accrued interest is being calculated. Unless otherwise specified in the
applicable Authentication Certificate, the interest factor for each such day
shall be computed by dividing the per annum interest rate applicable to such day
by 360 in the case of Commercial Paper Rate Notes, Federal Funds Rate Notes,
LIBOR Notes, Prime Rate Notes and CD Rate Notes, or by the actual number of days
in the year in the case of Treasury Rate Notes and CMT Rate Notes. The interest
rate in effect on each day will be (i) if such day is an Interest Reset Date,
the interest rate with respect to the Interest Determination Date pertaining to
such Interest Reset Date or (ii) if such day is not an Interest Reset Date, the
interest rate with respect to the Interest Determination Date pertaining to the
next preceding Interest Reset Date, subject in either case to any maximum or
minimum interest rate limitation referred to above or in the applicable
Authentication Certificate.
Unless otherwise specified in the applicable Authentication
Certificate, Norwest Bank Minnesota, National Association will be the
"Calculation Agent." On or before each Calculation Date, the Calculation Agent
will determine the interest rate as described below and notify the Paying Agent.
The Paying Agent will determine the Accrued Interest Factor applicable to any
such Floating Rate Note. The Paying Agent will, upon the request of the holder
of any Floating Rate Note, provide the interest rate then in effect and the
interest rate which will become effective as a result of a determination made
with respect to the most recent Interest Determination Date with respect to such
Floating Rate Note. The determinations of interest rates made by the
Calculation Agent shall be conclusive and binding, and neither the Trustee nor
the Paying Agent shall have the duty to verify determinations of interest rates
made by the Calculation Agent. The determinations of Accrued Interest Factors
made by the Paying Agent shall be conclusive and binding. Unless otherwise
specified in the applicable Authentication Certificate, the "Calculation Date,"
if applicable, pertaining to any Interest Determination Date on a Floating Rate
Note will be the earlier of (i) the tenth calendar day after such Interest
Determination Date, or, if any such day is not a Business Day, the next
succeeding Business Day, and (ii) the Business Day immediately preceding the
applicable Interest Payment Date or the stated maturity date or redemption or
repayment date, as the case may be.
Unless otherwise specified in the applicable Authentication
Certificate, all percentages resulting from any calculation referred to in this
Officers' Certificate and Company Order will be rounded, if necessary, to the
nearest one hundred-thousandth of one percentage point, with five one-millionths
of one percentage point rounded upward (e.g., 9.876545% (or .09876545) being
rounded to 9.87655% (or .0987655) and 9.876544% (or .09876544) being rounded to
9.87654% (or .0987654)); all calculations of the Accrued Interest Factor for any
day on Floating Rate Notes will be rounded, if necessary, to the nearest one
hundred-millionth, with five one-billionths rounded upward (e.g. .098765455
being rounded to .09876546 and .098765454 being rounded to .09876545); and all
currency or composite currency amounts used in or resulting from such
calculations on Floating Rate Notes will be rounded to the nearest cent (with
one-half cent being rounded upward).
7
<PAGE>
Commercial Paper Rate. Commercial Paper Rate Notes will bear interest
---------------------
at the interest rates (calculated with reference to the Commercial Paper Rate
and the Spread or Spread Multiplier, if any) specified in the Commercial Paper
Rate Note and in the applicable Authentication Certificate.
Unless otherwise specified in the applicable Authentication
Certificate, "Commercial Paper Rate" means, with respect to any Commercial Paper
Interest Determination Date, the Money Market Yield (calculated as described
below) of the rate on that date for commercial paper having the Index Maturity
specified in the applicable Authentication Certificate as such rate is published
by the Board of Governors of the Federal Reserve System in "Statistical Release
H.15 (519), Selected Interest Rates" or any successor publication ("H.15
(519)"), under the heading "Commercial Paper--Nonfinancial." If by 3:00 p.m.,
New York City time, on the Calculation Date pertaining to such Commercial Paper
Interest Determination Date such rate is not so published, then the Commercial
Paper Rate shall be the Money Market Yield of the rate on that Commercial Paper
Interest Determination Date for commercial paper having the Index Maturity
designated in the applicable Authentication Certificate as published in H.15
Daily Update under the heading "Commercial Paper--Nonfinancial" or any successor
heading. If by 3:00 p.m., New York City time, on such Calculation Date such
rate is not so published in H.15 Daily Update, the Commercial Paper Rate for
that Commercial Paper Interest Determination Date shall be calculated by the
Calculation Agent and shall be the Money Market Yield of the arithmetic mean of
the offered rates of three leading dealers of United States dollar commercial
paper in The City of New York selected by the Calculation Agent as of 11:00
a.m., New York City time, on that Commercial Paper Interest Determination Date,
for commercial paper having the Index Maturity specified in the applicable
Authentication Certificate placed for a non-financial issuer whose bond rating
is "Aa," or the equivalent, from a nationally recognized rating agency;
provided, however, that if fewer than three dealers selected as aforesaid by the
Calculation Agent are quoting as specified in this sentence, the Commercial
Paper Rate with respect to such Commercial Paper Interest Determination Date
will remain the Commercial Paper Rate in effect on such Commercial Paper
Interest Determination Date.
"Money Market Yield" shall be a yield calculated in accordance with
the following formula:
Money Market Yield = D x 360 x 100
-------------
360-(D x M)
where "D" refers to the per annum rate for the commercial paper, quoted on a
bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
Federal Funds Rate. Federal Funds Rate Notes will bear interest at
------------------
the interest rates (calculated with reference to the Federal Funds Rate and the
Spread and/or Spread
8
<PAGE>
Multiplier, if any) specified in the Federal Funds Rate Notes and in the
applicable Authentication Certificate.
Unless otherwise specified in the applicable Authentication
Certificate, "Federal Funds Rate" means, with respect to any Federal Funds
Interest Determination Date, the rate on that day for United States dollar
Federal Funds as published in H.15 (519), under the heading "Federal Funds
(Effective)" or, if not so published by 3:00 p.m., New York City time, on the
Calculation Date pertaining to such Federal Funds Interest Determination Date,
the Federal Funds Rate will be the rate on such Federal Funds Interest
Determination Date for United States dollar Federal Funds as published in H.15
Daily Update under the heading "Federal Funds (Effective)" or any successor
heading. If such rate is not so published by 3:00 p.m., New York City time, on
the Calculation Date pertaining to such Federal Funds Interest Determination
Date, the Federal Funds Rate for such Federal Funds Interest Determination Date
will be calculated by the Calculation Agent and will be the arithmetic mean of
the rates for the last transaction in overnight United States dollar Federal
Funds arranged by three leading brokers of Federal Funds transactions in The
City of New York selected by the Calculation Agent as of 9:00 a.m., New York
City time, on such Federal Funds Interest Determination Date; provided, however,
that if fewer than three brokers selected as aforesaid by the Calculation Agent
are quoting as specified in this sentence, the Federal Funds Rate will remain
the Federal Funds Rate in effect on such Federal Funds Interest Determination
Date.
LIBOR. LIBOR Notes will bear interest at the interest rates
-----
(calculated with reference to LIBOR and the Spread and/or Spread Multiplier, if
any) specified in the LIBOR Notes and in the applicable Authentication
Certificate.
Unless otherwise specified in the applicable Authentication
Certificate, LIBOR will be determined by the Calculation Agent in accordance
with the following provisions:
(i) With respect to a LIBOR Interest Determination Date, LIBOR will
be either (a) if "LIBOR Telerate" is specified in the applicable
Authentication Certificate, or if neither "LIBOR Reuters" nor "LIBOR
Telerate" is specified in the applicable Authentication Certificate, the
rate for deposits in United States dollars, or such other currency or
composite currency specified in the applicable Authentication Supplement as
to which LIBOR shall be calculated, (the "Index Currency") having the Index
Maturity specified in the applicable Authentication Certificate, commencing
on such Interest Reset Date, that appears on the Designated LIBOR Page (as
defined below) as of 11:00 a.m. London time on such LIBOR Interest
Determination Date, or (b) if "LIBOR Reuters" is specified in the
applicable Authentication Certificate, the arithmetic mean of the offered
rates (unless the Designated LIBOR Page by its terms provides only for a
single rate in which case such single rate shall be used) for deposits in
the Index Currency having the Index Maturity specified in the applicable
Authentication Certificate, commencing on the applicable Interest Reset
Date, that appear (or, if only a single rate is required as aforesaid,
appears) on the Designated LIBOR Page as of 11:00 a.m., London time, on
9
<PAGE>
such LIBOR Interest Determination Date. If fewer than two such offered
rates so appear, or if no such rate so appears, as applicable, then LIBOR
in respect of that LIBOR Interest Determination Date will be determined as
described in (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which
fewer than two offered rates appear, or no rate appears, as the case may
be, as specified in (i) above, the Calculation Agent will determine LIBOR
by requesting four major banks in the London interbank market selected by
the Calculation Agent (the "Reference Banks") to provide the Calculation
Agent with its offered quotation for deposits in the Index Currency for the
period of the Index Maturity specified in the applicable Authentication
Certificate, commencing on the applicable Interest Reset Date, to prime
banks in the London interbank market at approximately 11:00 a.m. London
time, on such LIBOR Interest Determination Date and in a principal amount
that is representative for a single transaction in such Index Currency in
such market at such time. If at least two such quotations are provided,
then LIBOR on such LIBOR Interest Determination Date will be the arithmetic
mean of such quotations. If fewer than two such quotations are so
provided, then LIBOR on such LIBOR Interest Determination Date will be the
arithmetic mean of the rates so quoted at approximately 11:00 a.m. in the
applicable Principal Financial Center (as defined below) on such LIBOR
Interest Determination Date by three major banks in such Principal
Financial Center selected by the Calculation Agent for loan in the Index
Currency to leading European banks, having the Index Maturity specified in
the applicable Authentication Certificate and in a principal amount that is
representative for a single transaction in such Index Currency at such
market time; provided, however, that the banks selected as aforesaid by the
Calculation Agent are not quoting as specified in this sentence, LIBOR with
respect to such LIBOR Interest Determination Date will remain LIBOR in
effect on such LIBOR Interest Determination Date.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified in
---------------------
the applicable Authentication Certificate, the display on the Reuter Monitor
Money Rates Service (or any successor service) on the page specified in the
applicable Authentication Certificate (or any other page as may replace such
page on such service) for the purpose of displaying the London interbank rates
of major banks for the applicable Index Currency, or (b) if "LIBOR Telerate" is
specified in the applicable Authentication Certificate as the method for
calculating LIBOR, the display on Telerate (or any successor service) on the
page specified in the applicable Authentication Certificate (or any other page
as may replace such page on such service) for the purpose of displaying the
London interbank rates of major banks for the applicable Index Currency.
"Principal Financial Center" will generally be the capital city of the
--------------------------
country of the specified Index Currency, except that with respect to United
States dollars, Deutsche marks, Dutch guilders, Italian lira, Portuguese
escudos, Swiss francs, Australian dollars, Canadian dollars, South African rand
and the Euro, the Principal Financial Center shall be the City of New
10
<PAGE>
York, Frankfurt, Amsterdam, Milan, London (solely in the case of the Index
Currency) Zurich, Melbourne, Toronto, Johannesburg and Frankfurt, respectively.
Prime Rate. Prime Rate Notes will bear interest at the interest rates
----------
(calculated with reference to the Prime Rate and the Spread and/or Spread
Multiplier, if any) specified in the Prime Rate Notes and in the applicable
Authentication Certificate.
Unless otherwise specified in the applicable Authentication
Certificate, "Prime Rate" means, with respect to any Prime Interest
Determination Date, the rate set forth for the relevant Prime Interest
Determination Date as such rate is published in H.15(19) under the heading "Bank
Prime Loan," or any successor heading. In the event that such rate is not so
published by 3:00 p.m., New York City time, on the relevant Calculation Date,
then the Prime Rate with respect to such Prime Interest Determination Date will
be the rate as published in H.15 Daily Update opposite the caption "Bank Prime
Loan," or any successor heading. In the event that such rate is not so published
by 3:00 p.m., New York City time, on the relevant Calculation Date, then the
Prime Rate with respect to such Prime Interest Determination Date will be the
arithmetic mean of the rates of interest publicly announced by each bank that
appears on the Reuters Screen USPRIME 1 Page, or any successor screen or page,
as such bank's prime rate or base lending rate in effect for that Prime Rate
Interest Determination Date at 11:00 a.m., New York City time. If fewer than
four such rates appear on the Reuters Screen USPRIME1 Page for such Prime Rate
Interest Determination Date, the Prime Rate will be the arithmetic mean of the
announced prime rates or base lending rates quoted on the basis of the actual
number of days in the year divided by a 360-day year as of the close of business
on such Prime Interest Determination Date by at least two major money center
banks in the City of New York selected by the Calculation Agent (which may
include the Distributors or their affiliates). If fewer than two quotations are
provided, the Prime Rate shall be calculated by the Calculation Agent and shall
be determined on the basis of the rates furnished in the City of New York on
such date by the appropriate number of substitute banks or trust companies
organized and doing business under the laws of the United States, or any state
thereof, having total equity capital of at least $500,000,000 and being subject
to supervision or examination by a federal or state authority, selected by the
Calculation Agent to provide such rate or rates; provided, however, that if the
banks or trust companies selected as aforesaid by the Calculation Agent are
quoting as specified in this sentence, the Prime Rate will remain the Prime Rate
in effect on such Prime Interest Determination Date.
CD Rate. CD Rate Notes will bear interest at the interest rates
-------
(calculated with reference to the CD Rate and the Spread and/or Spread
Multiplier, if any) specified in the CD Rate Notes and in the applicable
Authentication Certificate.
Unless otherwise specified in the applicable Authentication
Certificate, "CD Rate" means, with respect to any CD Interest Determination
Date, the rate on such date for negotiable certificates of deposit having the
Index Maturity specified in the applicable Authentication Certificate as
published in H.15 under the heading ("CDs (Secondary Market)")
11
<PAGE>
or any successor heading. If by 3:00 p.m., New York City time, on the
Calculation Date pertaining to such CD Interest Determination Date such rate is
not so published in H.15, then the CD Rate shall be the rate on such CD Interest
Determination Date set forth in H.15 Daily Update for that day in respect of
certificates of deposit having the Index Maturity designated in the applicable
Authentication Certificate under the heading "CDs (Secondary Market)", or any
successor heading. If by 3:00 p.m., New York City time, on such Calculation Date
such rate is not so published in H.15 Daily Update, the CD Rate for that CD
Interest Determination Date shall be calculated by the Calculation Agent and
shall be the arithmetic mean of the secondary market offered rates as of 10:00
a.m., New York City time, on such CD Interest Determination Date, of three
leading nonbank dealers in negotiable United States dollar certificates of
deposit in the City of New York selected by the Calculation Agent for negotiable
certificates of deposit of major United States money market banks of the highest
credit standing (in the market for negotiable certificates of deposits) with a
remaining maturity closest to the Index Maturity specified in the applicable
Authentication Certificate in a denomination of $5,000,000; provided, however,
that if fewer than three dealers selected as aforesaid by the Calculation Agent
are quoting as specified in this sentence, the CD Rate will remain the CD Rate
in effect on such CD Interest Determination Date.
Treasury Rate. Treasury Rate Notes will bear interest at the interest
-------------
rates (calculated with reference to the Treasury Rate and the Spread and/or
Spread Multiplier, if any) specified in the Treasury Rate Notes and in the
applicable Authentication Certificate.
Unless otherwise specified in the applicable Authentication
Certificate, "Treasury Rate" means, with respect to any Treasury Interest
Determination Date, the rate for the most recent auction of direct obligations
of the United States ("Treasury bills") having the Index Maturity specified in
the applicable Authentication Certificate as such rate is released by the Board
of Governors of the Federal Reserve System as reported on page 56 or 57 (or
other applicable page) of the Telerate Service, under the heading "Avge Invest
Yield" or, if not so reported on the Telerate Service by 3:00 p.m., New York
City time, on the Calculation Date pertaining to such Treasury Interest
Determination Date, the auction average rate (expressed as a bond equivalent on
the basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) as otherwise announced by the United States Department of the Treasury,
or if such results of such auction are not reported by 3:00 p.m., New York City
time or, if no such auction is held, such rate as published in H.15 (519), under
the heading "U.S. Government Securities/Treasury Bills/Secondary Market" or, if
not so published in H.15 (519) by 3:00 p.m., New York City time, on the
Calculation Date pertaining to such Treasury Interest Determination Date, then
the Treasury Rate shall be calculated by the Calculation Agent and shall be a
yield to maturity (expressed as a bond equivalent on the basis of a year of 365
or 366 days, as applicable, and applied on a daily basis) of the arithmetic mean
of the secondary market bid rates, as of approximately 3:30 p.m., New York City
time, on such Treasury Interest Determination Date, of three leading primary
United States government securities dealers in the City of New York selected by
the Calculation Agent for the issue of Treasury bills with a remaining maturity
closest to the Index Maturity designated in the applicable Authentication
Certificate; provided, however,
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<PAGE>
that if fewer than three dealers selected as aforesaid by the Calculation Agent
are quoting as specified in this sentence, the Treasury Rate with respect to
such Treasury Interest Determination Date will remain the Treasury Rate in
effect on such Treasury Interest Determination Date.
CMT Rate. CMT Rate Notes will bear interest at the interest rates
--------
(calculated with reference to the CMT Rate and the Spread and/or Spread
Multiplier, if any) specified in the CMT Rate Note and in the applicable
Authentication Certificate.
Unless otherwise specified in the applicable Authentication
Certificate, "CMT Rate" means, with respect to any CMT Interest Determination
Date, the rate displayed on the Designated CMT Telerate Page (as defined below)
under the caption ". . . . Treasury Constant Maturities . . . Federal Reserve
Board Release H.15," or any successor caption, under the column for the
Designated CMT Maturity Index (as defined below) for (i) if the Designated CMT
Telerate Page is 7051, the rate on such CMT Rate Interest Determination Date and
(ii) if the Designated CMT Telerate Page is 7052, the week or the month, as
applicable, ended immediately preceding the week in which the related CMT
Interest Determination Date occurs. If such rate is no longer displayed on the
relevant page, or is not displayed by 3:00 p.m., New York City time on the
related Calculation Date, then the CMT Rate for such CMT Interest Determination
Date will be such Treasury Constant Maturity rate for the Designated CMT
Maturity Index as published by either the Board of Governors of the Federal
Reserve System or the United States Department of the Treasury that the
Calculation Agent determines to be comparable to the rate formerly displayed on
the Designated CMT Telerate Page and published in the relevant H.15 (519) or any
successor publication. If such information is not provided by 3:00 p.m., New
York City time, on the related Calculation Date, then the CMT Rate for the CMT
Interest Determination Date will be calculated by the Calculation Agent and will
be a yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 p.m., New York City time, on
the CMT Interest Determination Date reported, according to their written
records, by three leading primary United States government securities dealers
(each a "Reference Dealer") in the City of New York selected by the Calculation
Agent (from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation, (or in the event of equality, one of the
lowest)), for the most recently issued direct noncallable fixed rate obligations
of the United States ("Treasury Notes") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent cannot obtain three such Treasury Note quotations, the CMT
Rate for such CMT Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic mean
of the secondary market offer side prices as of approximately 3:30 p.m., New
York City time, on the CMT Interest Determination Date of three Reference
Dealers in the City of New York (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation, (or in the event of
equality, one of the lowest)), for Treasury Notes with an original maturity of
the number of years that is the next highest to the Designated CMT Maturity
13
<PAGE>
Index and a remaining term to maturity closest to the Designated CMT Maturity
Index and in an amount of at least $100 million. If three or four (and not five)
of such Reference Dealers are quoting as described above, then the CMT Rate will
be based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes will be eliminated; provided, however, if
fewer than three Reference Dealers selected by the Calculation Agent are quoting
as described herein, the CMT Rate will be the CMT Rate in effect on such CMT
Interest Determination Date. If two Treasury Notes with an original maturity as
described in the third preceding sentence, have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the quotes for the CMT Rate
Note with the shorter remaining term to maturity will be used.
"Designated CMT Telerate Pate" means the display on the Telerate Service,
or any successor service, on the page designated in the applicable
Authentication Certificate (or any other page as may replace such page on that
service for the purpose of displaying Treasury Constant Maturities as reported
in H.15 (519)), for the purpose of displaying Treasury Constant Maturities as
reported in H.15 (519). If no such page is specified in the applicable
Authentication Certificate, the Designated CMT Telerate Page shall be 7052 for
the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified in the applicable Authentication Certificate with respect to which the
CMT Rate will be calculated. If no such maturity is specified in the applicable
Authentication Certificate, the Designated CMT Maturity Index shall be two
years.
Zero Coupon Notes
-----------------
The specific terms of any Zero Coupon Notes will be set forth in the
applicable Authentication Certificate.
(6) Unless otherwise specified in the applicable Authentication
Certificate, principal of (and premium, if any) and interest (if any) on the
Notes will be payable, and, except as provided in Section 305 of the Indenture
with respect to any Global Security (as defined below) representing Book-Entry
Notes (as defined below), the transfer of the Notes will be registrable and
Notes will be exchangeable for Notes bearing identical terms and provisions at
the corporate trust office of Norwest Bank Minnesota, National Association (the
"Paying Agent"), in the City of Minneapolis, Minnesota or at its agency located
in the City of New York, provided that payments of interest with respect to any
Certificated Note (as defined below), other than interest at maturity or upon
redemption, may be made at the option of the Company by check mailed to the
address of the person entitled thereto as it appears on the registry books of
the Company at the close of business on the Regular Record Date corresponding to
the relevant Interest Payment Date. Unless otherwise specified in the applicable
Authentication Certificate, holders of $10,000,000 or more in aggregate
principal amount of Certificated Notes shall be
14
<PAGE>
entitled to receive payments of interest, other than interest at maturity or
upon redemption, by wire transfer of immediately available funds, if appropriate
wire transfer instructions have been given to the Paying Agent in writing not
later than the Regular Record Date prior to the applicable Interest Payment
Date.
(7) If so specified in the applicable Authentication Certificate, the
Notes will be redeemable at the option of the Company on the date or dates prior
to maturity specified in the applicable Authentication Certificate at the price
or prices ("Redemption Prices") specified in the applicable Authentication
Certificate (unless otherwise specified in such Authentication Certificate,
expressed as a percentage of the principal amount of such Note or, in the case
of Zero Coupon Notes or certain interest bearing Notes issued as Original Issue
Discount Notes (as specified in the applicable Authentication Certificate), as a
percentage of the Amortized Face Amount (as defined below) of such Note as
described in Paragraph (13) below), together with accrued interest, if any, to
the date of redemption (or, in the case of any interest bearing Note issued as
an Original Issue Discount Note, any accrued but unpaid "qualified stated
interest" payments (as specified in Paragraph (13) below)) and the redemption
period or periods ("Redemption Periods") during which such Redemption Prices
shall apply. Unless otherwise specified in the applicable Authentication
Certificate, the Company may redeem any of the Notes which are redeemable and
remain outstanding either in whole or from time to time in part upon the terms
and conditions set forth in Article XI of the Indenture.
(8) The Notes will not be subject to any sinking fund and, unless a
date or dates on which a Note may be repayable at the option of the Holder
thereof (each a "Repayment Date") is specified in the applicable Authentication
Certificate, will not be repayable at the option of a holder prior to their
stated maturity. If a Repayment Date is so specified with respect to any Note,
the applicable Authentication Certificate will also specify one or more
repayment prices ("Repayment Prices") (unless otherwise specified in such
Authentication Certificate, expressed as a percentage of the principal amount of
such Note or, in the case of Zero Coupon Notes or certain interest bearing Notes
issued as Original Issue Discount Notes (as specified in the applicable
Authentication Certificate), as a percentage of the Amortized Face Amount of
such Note as described in Paragraph (13) below), together with accrued interest,
if any, to the date of repayment (or, in the case of any interest bearing Note
issued as an Original Issue Discount Note, any accrued but unpaid "qualified
stated interest" payments (as specified in Paragraph (13) below)), the repayment
period or periods ("Repayment Periods") during which such Repayment Prices shall
apply and any other terms of such repayment. Unless otherwise specified in the
applicable Authentication Certificate, the Company shall not be obligated to
redeem or purchase any Notes of such series pursuant to any sinking fund or
analogous provisions or at the option of any Holder.
(9) Unless otherwise specified in the applicable Authentication
Certificate, Notes of such series, other than Foreign Currency Notes (as defined
below), may be issued only in fully registered form and the authorized
denomination of the Notes of such series shall be
15
<PAGE>
$1,000 and any integral multiple of $1,000 in excess thereof. Foreign Currency
Notes will be issued in the denominations specified in the applicable
Authentication Certificate.
(10) The Notes may be denominated, and payments of principal of and
interest on the Notes will be made, in United States dollars or in such foreign
currencies or composite currencies (a "Specified Currency") as may be specified
in the applicable Authentication Certificate (each such Note denominated in a
Specified Currency other than United States Dollars, a "Foreign Currency Note").
(11) Unless otherwise specified in the applicable Authentication
Certificate, the Notes shall be subject to the events of default specified in
Section 501, paragraphs (1) through (7), of the Indenture.
(12) Unless otherwise specified in the applicable Authentication
Certificate, the Notes shall be subject to the restrictive covenants specified
in Sections 1007 and 1008 of the Indenture.
(13) The portion of the principal amount of the Notes, other than
Original Issue Discount Notes (including any Zero Coupon Notes) which shall be
payable upon declaration of acceleration of maturity thereof shall not be other
than the principal amount thereof. Unless otherwise specified in the applicable
Authentication Certificate, the portion of the principal amount of Zero Coupon
Notes and certain interest bearing Notes issued as Original Issue Discount Notes
(as specified in the applicable Authentication Certificate) payable upon any
acceleration of the maturity thereof will be the Amortized Face Amount (as
defined below) thereof, and the amount payable to the holder of such Original
Issue Discount Note upon any redemption thereof will be the applicable
percentage of the Amortized Face Amount thereof specified in the applicable
Authentication Certificate, in each case as determined by the Company plus, in
the case of any interest bearing Note issued as an Original Issue Discount Note,
any accrued but unpaid "qualified stated interest" payments (as defined in the
Treasury Regulations regarding original issue discount issued by the Treasury
Department (the "Regulations")). The "Amortized Face Amount" of an Original
Issue Discount Note is equal to the sum of (i) the Issue Price (as defined
below) of such Original Issue Discount Note and (ii) that portion of the
difference between the Issue Price and the principal amount of such Original
Issue Discount Note that has been amortized at the Stated Yield (as defined
below) of such Original Issue Discount Note (computed in accordance with Section
1272(a)(4) of the Internal Revenue Code of 1986, as amended, and Section 1.1275-
1(b) of the Regulations, in each case as in effect on the issue date of such
Original Issue Discount Note) at the date as of which the Amortized Face Amount
is calculated, but in no event can the Amortized Face Amount exceed the
principal amount of such Note due at the stated maturity thereof. As used in
the preceding sentence, the term "Issue Price" means the principal amount of
such Original Issue Discount Note due at the stated maturity thereof less the
"Original Issue Discount" of such Original Issue Discount Note specified on the
face thereof and in the applicable Authentication Certificate. The term "Stated
Yield" of such Original Issue Discount Note means the "Yield to Maturity"
16
<PAGE>
specified on the face of such Original Issue Discount Note and in the applicable
Authentication Certificate for the period from the Original Issue Date of such
Original Issue Discount Note, as specified on the face of such Original Issue
Discount Note and in the applicable Authentication Certificate, to the stated
maturity thereof based on its Issue Price and principal amount payable at the
stated maturity thereof.
(14) The Notes may be issued with the principal amount thereof payable
at maturity or upon redemption or repayment or the interest payable on any
Interest Payment Date, or both, to be determined with reference to an index or
indices (e.g., currencies, composite currencies, commodities, financial or
nonfinancial indices) or other factors set forth in the applicable
Authentication Certificate. Holders of such Notes may receive a principal
amount at maturity or upon redemption or repayment that is greater than or less
than the face amount of the Note depending upon such index or other factor.
Information as to the method for determining the principal amount payable on any
Interest Payment Date, as the case may be, and the applicable index or other
factor will be set forth in the applicable Authentication Certificate.
(15) Each Note will be represented by either a global security (a
"Global Security") registered in the name of a nominee of the Depository (each
such Note represented by a Global Security being herein referred to as a "Book-
Entry Note") or a certificate issued in definitive registered form, without
coupons (a "Certificated Note"), as set forth in the applicable Authentication
Certificate. Unless otherwise specified in the applicable Authentication
Certificate, The Depository Trust Company will act as Depositary. Except as
provided in Section 305 of the Indenture, Book-Entry Notes will not be issuable
in certificated form and will not be exchangeable or transferable. So long as
the Depositary or its nominee is the registered holder of any Global Security,
the Depositary or its nominee, as the case may be, will be considered the sole
Holder of the Book-Entry Note or Notes represented by such Global Security for
all purposes under the Indenture and the Notes.
(16) Unless otherwise specified in the applicable Authentication
Certificate with respect to Notes for which the principal of or any premium or
interest on such Notes is denominated or payable in a Specified Currency other
than United States dollars, Sections 403 and 1009 of the Indenture shall apply
to the Notes.
(17) Subject to the terms of the Indenture and the resolutions and
authorizations referred to in the first paragraph hereof, the Notes shall have
such other terms (which may be in addition to or different from the terms set
forth herein) as are specified in the applicable Authentication Certificate.
17
<PAGE>
B. Establishment of Note Forms pursuant to Section 201 of Indenture.
----------------------------------------------------------------
It is hereby established pursuant to Section 201 of the Indenture that
the Global Securities representing Book-Entry Notes denominated and payable in
United States dollars shall be substantially in the forms attached as Exhibits
A, B, C and D hereto, unless a different form is provided in the applicable
Authentication Certificate (which Authentication Certificate shall be an
"Officers' Certificate" satisfying the requirements of Section 201 of the
Indenture). The Notes shall have such additional terms as shall be set forth in
the applicable Authentication Certificate and delivered to the Trustee or its
authenticating agent. Upon receipt (including by facsimile) of such an
Authentication Certificate, the Trustee or its authenticating agent is hereby
instructed to insert such terms on the face of the Notes relating thereto.
C. Establishment or Procedures for Authentication of Notes Pursuant
----------------------------------------------------------------
to Section 303 of Indenture.
- ---------------------------
It is hereby ordered pursuant to Section 303 of the Indenture that
Notes may be authenticated by the Trustee and issued in accordance with the
Administrative Procedures attached hereto as Exhibit E and upon receipt by the
Trustee (including by facsimile) of an Authentication Certificate Supplemental
to this Officers' Certificate and Company Order, in substantially the form
attached as Exhibit F hereto (an "Authentication Certificate"), setting forth
the information specified or contemplated therein for the particular Notes to be
authenticated and issued. At least one officer signing each Authentication
Certificate shall be an Authorized Officer as defined in the resolutions
referred to in the first paragraph hereof.
D. Other Matters.
-------------
The applicable Authentication Certificate shall specify any agent of
the Company designated for the purpose of delivering, for cancellation by the
Trustee pursuant to Section 309 of the Indenture, Notes which have not been
issued and sold by the Company.
The undersigned have read the pertinent sections of the Indenture
including the related definitions contained therein. The undersigned have
examined the resolutions adopted by the Board of Directors of the Company and
the authorizations adopted by the Committee of the Board of Directors. In the
opinion of the undersigned, the undersigned have made such examination or
investigation as is necessary to enable the undersigned to express an informed
opinion as to whether or not the conditions precedent to the establishment of
(i) a series of
18
<PAGE>
Securities, (ii) the forms of such Securities and (iii) the procedures for
authentication of such series of Securities, contained in the Indenture have
been complied with. In the opinion of the undersigned, such conditions have been
complied with.
Dated: August 30, 1999
JOSTENS, INC.
By: /s/ William N. Priesmeyer
-----------------------------
William N. Priesmeyer
Senior Vice President and
Chief Financial Officer
And: /s/ Lee U. McGrath
-----------------------------
Lee U. McGrath
Vice President and Treasurer
19
<PAGE>
EXHIBIT 4.3(A)
This Note is a Global Security within the meaning of the Indenture
referred to herein and is registered in the name of a Depositary or a
nominee of a Depositary. Unless this certificate is presented by an
authorized representative of The Depository Trust Company (55 Water
Street, New York, New York) to the issuer or to its agent for
registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust
Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an interest herein.
JOSTENS, INC.
Medium-Term Note, Series A
(Global Fixed Rate Note)
REGISTERED REGISTERED
Principal Amount:
No. AA-
$
----------------
CUSIP NO.________
ORIGINAL ISSUE DATE: MATURITY DATE:
INTEREST RATE: REDEMPTION TERMS:
OTHER TERMS: REPAYMENT TERMS:
Jostens, Inc., a corporation duly organized and existing under the laws of
Minnesota (herein called the "Company", which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to
or registered assigns, the principal sum of ____________________________________
DOLLARS on the Maturity Date shown above, or together with any premium thereon,
upon any applicable Redemption Date or Repayment Date, and to pay interest
thereon from the Original Issue Date shown above or from and including the most
recent Interest Payment Date to which interest has been paid or duly provided on
each February 15 and August 15 or such other dates, if any, as are
<PAGE>
specified under "Other Terms" above (the "Interest Payment Dates") and on the
Maturity Date, commencing with the Interest Payment Date immediately following
the Original Issue Date, at the rate per annum equal to the Interest Rate shown
above, until the principal hereof is paid or made available for payment;
provided, however, that if the Original Issue Date is after a Regular Record
Date and on or before the immediately following Interest Payment Date, interest
payments will commence on the Interest Payment date following the next
succeeding Regular Record Date. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on the Regular Record
Date for such interest, which shall, unless otherwise specified under "Other
Terms" above, be on the February 1 and August 1 (whether or not a Business Day),
as the case may be, next preceding such February 15 and August 15 Interest
Payment Dates; provided, however, that interest payable on the Maturity Date of
this Note or any applicable Redemption Date or Repayment Date that is not an
Interest Payment Date shall be payable to the Person to whom principal shall be
payable. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Note (or one or more Predecessor
Notes) is registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to the Holder of this Note not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
of this series may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture. In the event that any
Interest Payment Date or the Maturity Date or any applicable Redemption Date or
Repayment Date is not a Business Day, the interest and, with respect to the
Maturity Date or any applicable Redemption Date or Repayment Date, principal
otherwise payable on such date will be paid on the next succeeding Business Day
with the same force and effect as if made on such Interest Payment Date,
Maturity Date, Redemption Date or Repayment Date.
Payment of the principal of (and premium, if any) and interest on this Note
due on the Maturity Date or any applicable Redemption Date or Repayment Date
will be made in immediately available funds upon presentation of this Note at
the Corporate Trust Office of the Trustee in the City of Minneapolis, Minnesota
or at its agency in the City of New York. Interest on this Note shall be
computed on the basis of a 360-day year of twelve 30-day months.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
-2-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
JOSTENS, INC.
By [specimen]
--------------------------------
William N. Priesmeyer
Senior Vice President and
Chief Financial Officer
Attest: [specimen]
---------------------------
Lee U. McGrath
Vice President and Treasurer
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities of the
series designated herein and issued
pursuant to the within-mentioned
Indenture.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By__________________________________
Authorized Officer
-3-
<PAGE>
JOSTENS, INC.
Medium-Term Note, Series A
(Global Fixed Rate Note)
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Notes"), issued or to be issued in one or more series under
an Indenture, dated as of August 30, 1999 (herein called the "Indenture"),
between the Company and Norwest Bank Minnesota, National Association, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Notes and of the terms upon which the Notes are, and are to be
authenticated and delivered. This Note is one of the series designated on the
face hereof. By the terms of the Indenture, additional Notes of this series and
of other separate series, which may vary as to date, amount, Maturity Date,
interest rate or method of calculating the interest rate and in other respects
as therein provided, may be issued in an unlimited principal amount.
If a Redemption Commencement Date or periods within which Redemption Dates
may occur and the related Redemption Prices (expressed as percentages of the
principal amount of this Note) are set forth under "Redemption Terms," this Note
is subject redemption prior to the Maturity Date upon not less than 30 nor more
than 60 days' notice by mail to the Person in whose name this Note is registered
at such address as shall appear in the registry books of the Company, on any
Redemption Date so specified or occurring within any period so specified, as a
whole or in part, at the election of the Company, at the applicable Redemption
Price so specified, together in the case of any such redemption with accrued
interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holder of this Note (or one or more predecessor Notes) at the
close of business on the relevant Regular Record Dates referred to above, all as
provided in the Indenture. In the event of redemption of this Note in part only,
a new Note of this series and of like tenor of an authorized denomination for
the unredeemed portion hereof will be issued in the name of the Holder hereof
upon the cancellation hereof. This Note is not subject to any sinking fund.
If a Repayment Date or periods within which Repayment Dates may occur and
the related Repayment Prices (expressed as percentages of the principal amount
of this Note) are set forth above under "Repayment Terms," this Note is subject
to repayment at the option of the Holder hereof prior to the Maturity Date upon
such terms as are set forth above under "Repayment Terms." In the event of
repayment of this Note in part only, a new Note of this series and of like tenor
of an authorized denomination of the portion hereof not repaid will be issued in
the name of the Holder hereof upon the cancellation hereof.
If an Event of Default with respect to Notes of this series shall occur and
be continuing, the principal of all the Notes of this series may (subject to the
conditions set forth in the Indenture) be declared due and payable in the manner
and with the effect provided in the Indenture.
-4-
<PAGE>
The Indenture contains provisions for defeasance at any time of the
Company's obligations in respect of (i) the entire indebtedness of this Note or
(ii) certain restrictive covenants with respect to this Note, in each case upon
compliance with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in aggregate principal amount of the
Notes at the time Outstanding of each series to be affected and, for certain
purposes, without the consent of the Holders of any Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Notes of each series
at the time Outstanding, on behalf of the Holders of all Notes of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Note at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Security Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in any place where the principal of (and premium, if any) and
interest on this Note are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Notes of this series, of
like tenor and of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
Unless otherwise set forth above, under "Other Terms," the Notes of this
series are issuable only in registered form without coupons in denominations of
$1,000 and any amount in excess thereof which is an integral multiple of $1,000.
As provided in the Indenture and subject to certain limitations therein set
forth, Notes of this series are exchangeable for a like aggregate principal
amount of Notes of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
-5-
<PAGE>
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered in the Security Register as the
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Note may have such additional or different terms as are set forth
above under "Other Terms." Any terms so set forth shall be deemed to modify
and/or supersede, as necessary, any other terms set forth in this Note.
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
____________________
ABBREVIATIONS
The following abbreviations, when used in this instrument, shall be
construed as though they were written out in full according to applicable laws
or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT -- _______________ Custodian ______________
(Cust) (Minor)
under Uniform Gift to Minors Act
___________________
(State)
Additional abbreviations may be used though not in the above list.
____________________
-6-
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________________________________________________
(Name and address of assignee, including zip code, must be printed or
typewritten)
________________________________________________________________________________
the within Note, and all rights thereunder, hereby irrevocably constituting and
appointing
_______________________________________________________________________ Attorney
to transfer said Note on the books of the within Company, with full power of
substitution in the premises
Dated ________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the within Note in every particular, without alteration or
enlargement or any change whatever and must be guaranteed by a commercial bank
or trust company having its principal office or a correspondent in the City of
New York or by a member of the New York Stock Exchange.
-7-
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to
repay the within Note (or portion thereof specified below) pursuant to its terms
at the applicable Repayment Price, together with interest to the Repayment Date,
to the undersigned at:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to repaid,
specify the portion thereof which the undersigned elects to have prepaid:
_______________________________________________; and specify the denomination or
denominations (which shall not be less than the minimum authorized denomination)
of the Notes to be issued to the undersigned for the portion of the within Note
not being repaid (in the absence of any such specifications, one such Note will
be issued for the portion not being repaid): ______________________________
Dated _______________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the within Note in every particular, without alteration or
enlargement or any change whatever.
-8-
<PAGE>
EXHIBIT 4.3(B)
This Note is a Global Security within the meaning of the Indenture referred to
herein and is registered in the name of a Depositary or a nominee of a
Depositary. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) to the
issuer or to its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or such other
name as requested by an authorized representative of The Depository Trust
Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.
JOSTENS, INC.
Medium-Term Note, Series A
(Global Floating Rate Note)
REGISTERED REGISTERED
Principal Amount:
No. AB- $
------------------
CUSIP NO.__________
ORIGINAL ISSUE DATE: MATURITY DATE:
INITIAL INTEREST RATE: SPREAD:
INTEREST RATE BASIS (and, if SPREAD MULTIPLIER:
applicable, related Interest Periods):
REDEMPTION TERMS:
[ ] Commercial Paper Rate
[ ] Federal Funds Rate
[ ] LIBOR
Index Currency:
[ ] Prime Rate
[ ] CD Rate
[ ] Treasury Rate
[ ] CMT Rate REPAYMENT TERMS:
Designated CMT Telerate
Page:
Designated CMT Maturity
Index: CALCULATION AGENT:
[ ] Other (see "Other Terms")
INDEX MATURITY:
MAXIMUM INTEREST RATE:
MINIMUM INTEREST RATE: OTHER TERMS:
INTEREST RESET DATES:
INTEREST PAYMENT DATES:
<PAGE>
Jostens, Inc., a corporation duly organized and existing under the laws of
Minnesota (herein called the "Company", which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to
or registered assigns, the principal sum of _____________________ DOLLARS on
the Maturity Date shown above or, if such Maturity Date is not a Business Day,
the next succeeding Business Day, except that in the case of a LIBOR Note, if
such Business Day is in the next succeeding calendar month, the immediately
preceding Business Day, or, together with any premium thereon, upon any
applicable Redemption Date or Repayment Date, and to pay interest thereon from
the Original Issue Date shown above or, except as otherwise specified below,
from and including the most recent Interest Payment Date to which interest has
been paid or duly provided for, on the Interest Payment Dates shown above and on
the Maturity Date, commencing with the Interest Payment Date immediately
following the Original Issue Date, at the rate per annum determined in
accordance with the provisions below relating to the applicable Interest Rate
Basis specified above, until the principal hereof is paid or made available for
payment; provided, however, that if the Original Issue Date is after a Regular
Record Date and on or before the immediately following Interest Payment Date,
interest payments will commence on the Interest Payment date following the next
succeeding Regular Record Date. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on the Regular Record
Date for such interest, which shall, unless otherwise specified under "Other
Terms" above, be on the fifteenth calendar day (whether or not a Business Day)
next preceding such Interest Payment Date; provided, however, that interest
payable on the Maturity Date of this Note or any applicable Redemption Date or
Repayment Date that is not an Interest Payment Date shall be payable to the
Person to whom principal shall be payable. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Note (or one or more Predecessor Notes) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to the Holder of this Note not
less than 10 days prior to such Special Record Date, or be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes of this series may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture. In the event that any Interest Payment Date or any applicable
Redemption Date or Repayment Date is not a Business Day, such Interest Payment
Date, Redemption Date or Repayment Date, shall be postponed to the next
succeeding day that is a Business Day, except that, in the case of a LIBOR Note,
if such Business Day is in the next succeeding calendar month, such Interest
Payment Date, Redemption Date or Repayment Date shall be the immediately
preceding Business Day.
Payment of the principal of (and premium, if any) and interest on this Note
will be made in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts. Payment
of the principal of (and premium, if any) and interest on this Note due on the
Maturity Date or any applicable Redemption Date or Repayment Date will be made
in immediately available funds upon presentation of this Note at the Corporate
-2-
<PAGE>
Trust Office of the Trustee in the City of Minneapolis, Minnesota or at its
agency in the City of New York.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
JOSTENS, INC.
By [specimen]
--------------------------------
William N. Priesmeyer
Senior Vice President and
Chief Financial Officer
Attest: [specimen]
---------------------------
Lee U. McGrath
Vice President and Treasurer
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities of the
series designated herein and issued
pursuant to the within-mentioned
Indenture.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By__________________________________
Authorized Officer
-3-
<PAGE>
JOSTENS, INC.
Medium-Term Note, Series A
(Global Floating Rate Note)
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Notes"), issued or to be issued in one or more series under
an Indenture, dated as of August 30, 1999 (herein called the "Indenture"),
between the Company and Norwest Bank Minnesota, National Association, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Notes and of the terms upon which the Notes are, and are to be
authenticated and delivered. This Note is one of the series designated on the
face hereof. By the terms of the Indenture, additional Notes of this series and
of other separate series, which may vary as to date, amount, Maturity Date,
interest rate or method of calculating the interest rate and in other respects
as therein provided, may be issued in an unlimited principal amount.
Redemption and Repayment
If a Redemption Commencement Date or periods within which Redemption Dates
may occur and the related Redemption Prices (expressed as percentages of the
principal amount of this Note) are set forth under "Redemption Terms," this Note
is subject redemption prior to the Maturity Date upon not less than 30 nor more
than 60 days' notice by mail to the Person in whose name this Note is registered
at such address as shall appear in the registry books of the Company, on any
Redemption Date so specified or occurring within any period so specified, as a
whole or in part, at the election of the Company, at the applicable Redemption
Price so specified, together in the case of any such redemption with accrued
interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to such Redemption Date will be
payable in the case of any such redemption to the Holder of this Note (or one or
more predecessor Notes) at the close of business on the relevant Regular Record
Dates referred to above, all as provided in the Indenture. In the event of
redemption of this Note in part only, a new Note of this series and of like
tenor of an authorized denomination for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof. This Note
is not subject to any sinking fund.
If a Repayment Date or periods within which Repayment Dates may occur and
the related Repayment Prices (expressed as percentages of the principal amount
of this Note) are set forth above under "Repayment Terms," this Note is subject
to repayment at the option of the Holder hereof prior to the Maturity Date upon
such terms as are set forth above under "Repayment Terms." In the event of
repayment of this Note in part only, a new Note of this series and of like tenor
of an authorized denomination of the portion hereof not repaid will be issued in
the name of the Holder hereof upon the cancellation hereof.
-4-
<PAGE>
Interest Provisions
Commencing with the Interest Reset Date specified above, first following
the Original Issue Date specified above, the rate at which this Note bears
interest will be reset daily, weekly, monthly, quarterly, semi-annually or
annually (the date on which each such reset occurs, an "Interest Reset Date"),
as specified above. Unless otherwise specified above under "Other Terms," the
Interest Reset Date will be as follows: in the case of Notes which are reset
daily, each Business Day; in the case of Notes (other than Treasury Rate Notes)
which are reset weekly, the Wednesday of each week; in the case of Treasury Rate
Notes which are reset weekly, the Tuesday of each week (except if the auction
date falls on a Tuesday, then the next Business Day, as provided below); in the
case of Notes which are reset monthly, the third Wednesday of each month; in the
case of Notes which are reset quarterly, the third Wednesday of March, June,
September and December of each year; in the case of Notes which are reset semi-
annually, the third Wednesday of the two months of each year specified above as
the Interest Reset Dates; and in the case of Notes which are reset annually, the
third Wednesday of the month of each year specified above as the Interest Reset
Dates.
Unless otherwise specified above, the interest rate determined with respect
to any Interest Determination Date (as defined below) will become effective on
and as of the next succeeding Interest Reset Date; provided, however, that (i)
the interest rate in effect from the Original Issue Date to the first Interest
Reset Date with respect to this Note (the "Initial Interest Rate") will be as
set forth above and (ii) the interest rate in effect for the 10 days immediately
prior to the Maturity Date will be that in effect on the tenth day preceding the
Maturity Date. If any Interest Reset Date for any Note would otherwise be a day
that is not a Business Day, such Interest Reset Date shall be postponed to the
next day that is a Business Day, except that in the case of a LIBOR Note, if
such Business Day is in the next succeeding calendar month, such Interest Reset
Date shall be the immediately preceding Business Day. Subject to applicable
provisions of law and except as specified herein, on each Interest Reset Date
the rate of interest on this Note shall be the rate determined in accordance
with the provisions of the applicable heading below.
Determination of Commercial Paper Rate
If the Interest Rate Basis specified above with respect to any Interest
Period (as defined below) is the Commercial Paper Rate, this Note is a
"Commercial Paper Rate Note" with respect to such Interest Period and the
interest rate with respect to this Note for any Interest Reset Date relating to
such Interest Period shall be the Commercial Paper Rate, plus or minus the
Spread, if any, or multiplied by the Spread Multiplier, if any, as specified
above, as determined on the applicable Commercial Paper Interest Determination
Date (as defined below).
Unless otherwise specified above under "Other Terms," "Commercial Paper
Rate" means, with respect to any Commercial Paper Interest Determination Date,
the Money Market Yield (calculated as described below) of the rate on that date
for commercial paper having the Index Maturity specified in the applicable
Authentication Certificate as such rate is published by the Board of Governors
of the Federal Reserve System in "Statistical Release H.15 (519), Selected
Interest Rates" or any successor publication ("H.15 (519)"), under the heading
"Commercial Paper--Nonfinancial." If by 3:00 p.m., New York City time, on the
Calculation Date pertaining
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to such Commercial Paper Interest Determination Date such rate is not so
published, then the Commercial Paper Rate shall be the Money Market Yield of the
rate on that Commercial Paper Interest Determination Date for commercial paper
having the Index Maturity designated in the applicable Authentication
Certificate as published in H.15 Daily Update under the heading "Commercial
Paper--Nonfinancial" or any successor heading. If by 3:00 p.m., New York City
time, on such Calculation Date such rate is not so published in H.15 Daily
Update, the Commercial Paper Rate for that Commercial Paper Interest
Determination Date shall be calculated by the Calculation Agent and shall be the
Money Market Yield of the arithmetic mean of the offered rates of three leading
dealers of United States dollar commercial paper in The City of New York
selected by the Calculation Agent as of 11:00 a.m., New York City time, on that
Commercial Paper Interest Determination Date, for commercial paper having the
Index Maturity specified in the applicable Authentication Certificate placed for
a non-financial issuer whose bond rating is "Aa," or the equivalent, from a
nationally recognized rating agency; provided, however, that if fewer than three
dealers selected as aforesaid by the Calculation Agent are quoting as specified
in this sentence, the Commercial Paper Rate with respect to such Commercial
Paper Interest Determination Date will remain the Commercial Paper Rate in
effect on such Commercial Paper Interest Determination Date.
"Money Market Yield" shall be a yield calculated in accordance with the
following formula:
Money Market Yield = D x 360 x 100
-----------------
360-(D x M)
where "D" refers to the per annum rate for the commercial paper, quoted on a
bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
Determination of Federal Funds Rate
If the Interest Rate Basis specified above with respect to any Interest
Period is the Federal Funds Rate, this Note is a "Federal Funds Rate Note" with
respect to such Interest Period and the interest rate with respect to this Note
for any Interest Reset Date relating to such Interest Period shall be the
Federal Funds Rate plus or minus the Spread, if any, or multiplied by the Spread
Multiplier, if any, as specified above, as determined on the applicable Federal
Funds Interest Determination Date (as defined below).
Unless otherwise specified above under "Other Terms," "Federal Funds
Rate" means, with respect to any Federal Funds Interest Determination Date, the
rate on that day for United States dollar Federal Funds as published in H.15
(519), under the heading "Federal Funds (Effective)" or, if not so published by
3:00 p.m., New York City time, on the Calculation Date pertaining to such
Federal Funds Interest Determination Date, the Federal Funds Rate will be the
rate on such Federal Funds Interest Determination Date for United States dollar
Federal Funds as published in H.15 Daily Update under the heading "Federal Funds
(Effective)" or any successor heading. If such rate is not so published by 3:00
p.m., New York City time, on the Calculation Date pertaining to such Federal
Funds Interest Determination Date, the Federal Funds Rate for
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such Federal Funds Interest Determination Date will be calculated by the
Calculation Agent and will be the arithmetic mean of the rates for the last
transaction in overnight United States dollar Federal Funds arranged by three
leading brokers of Federal Funds transactions in The City of New York selected
by the Calculation Agent as of 9:00 a.m., New York City time, on such Federal
Funds Interest Determination Date; provided, however, that if fewer than three
brokers selected as aforesaid by the Calculation Agent are quoting as specified
in this sentence, the Federal Funds Rate will remain the Federal Funds Rate in
effect on such Federal Funds Interest Determination Date.
Determination of LIBOR
If the Interest Rate Basis specified above with respect to any Interest
Period is LIBOR, this Note is a "LIBOR Note" with respect to such Interest
Period and the interest rate with respect to this Note for any Interest Reset
Date relating to such Interest Period shall be LIBOR plus or minus the Spread,
if any, or multiplied by the Spread Multiplier, if any, as specified above, as
determined on the applicable LIBOR Interest Determination Date (as defined
below).
Unless otherwise specified above under "Other Terms," LIBOR will be
determined by the Calculation Agent in accordance with the following provisions:
(i) With respect to a LIBOR Interest Determination Date, LIBOR will be
either (a) if "LIBOR Telerate" is specified in the applicable
Authentication Certificate, or if neither "LIBOR Reuters" nor "LIBOR
Telerate" is specified in the applicable Authentication Certificate, the
rate for deposits in United States dollars, or such other currency or
composite currency specified in the applicable Authentication Supplement as
to which LIBOR shall be calculated, (the "Index Currency") having the Index
Maturity specified in the applicable Authentication Certificate, commencing
on such Interest Reset Date, that appears on the Designated LIBOR Page (as
defined below) as of 11:00 a.m. London time on such LIBOR Interest
Determination Date, or (b) if "LIBOR Reuters" is specified in the
applicable Authentication Certificate, the arithmetic mean of the offered
rates (unless the Designated LIBOR Page by its terms provides only for a
single rate in which case such single rate shall be used) for deposits in
the Index Currency having the Index Maturity specified in the applicable
Authentication Certificate, commencing on the applicable Interest Reset
Date, that appear (or, if only a single rate is required as aforesaid,
appears) on the Designated LIBOR Page as of 11:00 a.m., London time, on
such LIBOR Interest Determination Date. If fewer than two such offered
rates so appear, or if no such rate so appears, as applicable, then LIBOR
in respect of that LIBOR Interest Determination Date will be determined as
described in (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which fewer
than two offered rates appear, or no rate appears, as the case may be, as
specified in (i) above, the Calculation Agent will determine LIBOR by
requesting four major banks in the London interbank market selected by the
Calculation Agent (the "Reference Banks") to provide the Calculation Agent
with its offered quotation for deposits in the Index Currency for the
period of the Index Maturity specified in the applicable Authentication
Certificate, commencing on the applicable Interest Reset Date, to prime
banks in the
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London interbank market at approximately 11:00 a.m. London time, on such
LIBOR Interest Determination Date and in a principal amount that is
representative for a single transaction in such Index Currency in such
market at such time. If at least two such quotations are provided, then
LIBOR on such LIBOR Interest Determination Date will be the arithmetic mean
of such quotations. If fewer than two such quotations are so provided, then
LIBOR on such LIBOR Interest Determination Date will be the arithmetic mean
of the rates so quoted at approximately 11:00 a.m. in the applicable
Principal Financial Center (as defined below) on such LIBOR Interest
Determination Date by three major banks in such Principal Financial Center
selected by the Calculation Agent for loan in the Index Currency to leading
European banks, having the Index Maturity specified in the applicable
Authentication Certificate and in a principal amount that is representative
for a single transaction in such Index Currency at such market time;
provided, however, that the banks selected as aforesaid by the Calculation
Agent are not quoting as specified in this sentence, LIBOR with respect to
such LIBOR Interest Determination Date will remain LIBOR in effect on such
LIBOR Interest Determination Date.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified in the
applicable Authentication Certificate, the display on the Reuter Monitor Money
Rates Service (or any successor service) on the page specified in the applicable
Authentication Certificate (or any other page as may replace such page on such
service) for the purpose of displaying the London interbank rates of major banks
for the applicable Index Currency, or (b) if "LIBOR Telerate" is specified in
the applicable Authentication Certificate as the method for calculating LIBOR,
the display on Telerate (or any successor service) on the page specified in the
applicable Authentication Certificate (or any other page as may replace such
page on such service) for the purpose of displaying the London interbank rates
of major banks for the applicable Index Currency.
"Principal Financial Center" will generally be the capital city of the
country of the specified Index Currency, except that with respect to United
States dollars, Deutsche marks, Dutch guilders, Italian lira, Portuguese
escudos, Swiss francs, Australian dollars, Canadian dollars, South African rand
and the Euro, the Principal Financial Center shall be the City of New York,
Frankfurt, Amsterdam, Milan, London (solely in the case of the Index Currency)
Zurich, Melbourne, Toronto, Johannesburg and Frankfurt, respectively.
Determination of Prime Rate
If the Interest Rate Basis specified above with respect to any Interest
Period is the Prime Rate, this Note is a "Prime Rate Note" with respect to such
Interest Period and the interest rate with respect to this Note for any Interest
Reset Date relating to such Interest Period shall be the Prime Rate plus or
minus the Spread, if any, or multiplied by the Spread Multiplier, if any, as
specified above, as determined on the applicable Prime Interest Determination
Date (as defined below).
Unless otherwise specified above under "Other Terms," "Prime Rate"
means, with respect to any Prime Interest Determination Date, the rate set forth
for the relevant Prime Interest Determination Date as such rate is published in
H.15(19) under the heading "Bank Prime Loan,"
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or any successor heading. In the event that such rate is not so published by
3:00 p.m., New York City time, on the relevant Calculation Date, then the Prime
Rate with respect to such Prime Interest Determination Date will be the rate as
published in H.15 Daily Update opposite the caption "Bank Prime Loan," or any
successor heading. In the event that such rate is not so published by 3:00 p.m.,
New York City time, on the relevant Calculation Date, then the Prime Rate with
respect to such Prime Interest Determination Date will be the arithmetic mean of
the rates of interest publicly announced by each bank that appears on the
Reuters Screen USPRIME 1 Page, or any successor screen or page, as such bank's
prime rate or base lending rate in effect for that Prime Rate Interest
Determination Date at 11:00 a.m., New York City time. If fewer than four such
rates appear on the Reuters Screen USPRIME1 Page for such Prime Rate Interest
Determination Date, the Prime Rate will be the arithmetic mean of the announced
prime rates or base lending rates quoted on the basis of the actual number of
days in the year divided by a 360-day year as of the close of business on such
Prime Interest Determination Date by at least two major money center banks in
the City of New York selected by the Calculation Agent (which may include the
Distributors or their affiliates). If fewer than two quotations are provided,
the Prime Rate shall be calculated by the Calculation Agent and shall be
determined on the basis of the rates furnished in the City of New York on such
date by the appropriate number of substitute banks or trust companies organized
and doing business under the laws of the United States, or any state thereof,
having total equity capital of at least $500,000,000 and being subject to
supervision or examination by a federal or state authority, selected by the
Calculation Agent to provide such rate or rates; provided, however, that if the
banks or trust companies selected as aforesaid by the Calculation Agent are
quoting as specified in this sentence, the Prime Rate will remain the Prime Rate
in effect on such Prime Interest Determination Date.
Determination of the CD Rate
If the Interest Rate Basis specified above with respect to any Interest
Period is the CD Rate, this Note is a "CD Rate Note" with respect to such
Interest Period and the interest rate with respect to this Note for any Interest
Reset Date relating to such Interest Period shall be the CD Rate plus or minus
the Spread, if any, or multiplied by the Spread Multiplier, if any, as specified
above, as determined on the applicable CD Interest Determination Date (as
defined below).
Unless otherwise specified in above under "Other Terms," "CD Rate"
means, with respect to any CD Interest Determination Date, the rate on such date
for negotiable certificates of deposit having the Index Maturity specified in
the applicable Authentication Certificate as published in H.15 under the heading
("CDs (Secondary Market)") or any successor heading. If by 3:00 p.m., New York
City time, on the Calculation Date pertaining to such CD Interest Determination
Date such rate is not so published in H.15, then the CD Rate shall be the rate
on such CD Interest Determination Date set forth in H.15 Daily Update for that
day in respect of certificates of deposit having the Index Maturity designated
in the applicable Authentication Certificate under the heading "CDs (Secondary
Market)", or any successor heading. If by 3:00 p.m., New York City time, on
such Calculation Date such rate is not so published in H.15 Daily Update, the CD
Rate for that CD Interest Determination Date shall be calculated by the
Calculation Agent and shall be the arithmetic mean of the secondary market
offered rates as of 10:00 a.m., New York City time, on such CD Interest
Determination Date, of three leading nonbank dealers in negotiable United States
dollar certificates of deposit in the City of New York
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selected by the Calculation Agent for negotiable certificates of deposit of
major United States money market banks of the highest credit standing (in the
market for negotiable certificates of deposits) with a remaining maturity
closest to the Index Maturity specified in the applicable Authentication
Certificate in a denomination of $5,000,000; provided, however, that if fewer
than three dealers selected as aforesaid by the Calculation Agent are quoting as
specified in this sentence, the CD Rate will remain the CD Rate in effect on
such CD Interest Determination Date.
Determination of Treasury Rate
If the Interest Rate Basis specified above with respect to any Interest
Period is the Treasury Rate, this Note is a "Treasury Rate Note" with respect to
such Interest Period and the interest rate with respect to this Note for any
Interest Reset Date relating to such Interest Period shall be the Treasury Rate
plus or minus the Spread, if any, or multiplied by the Spread Multiplier, if
any, as specified above, as determined on the applicable Treasury Interest
Determination Date (as defined below).
Unless otherwise specified above under "Other Terms," "Treasury Rate"
means, with respect to any Treasury Interest Determination Date, the rate for
the most recent auction of direct obligations of the United States ("Treasury
bills") having the Index Maturity specified in the applicable Authentication
Certificate as such rate is released by the Board of Governors of the Federal
Reserve System as reported on page 56 or 57 (or other applicable page) of the
Telerate Service, under the heading "Avge Invest Yield" or, if not so reported
on the Telerate Service by 3:00 p.m., New York City time, on the Calculation
Date pertaining to such Treasury Interest Determination Date, the auction
average rate (expressed as a bond equivalent on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) as otherwise announced by
the United States Department of the Treasury, or if such results of such auction
are not reported by 3:00 p.m., New York City time or, if no such auction is
held, such rate as published in H.15 (519), under the heading "U.S. Government
Securities/Treasury Bills/Secondary Market" or, if not so published in H.15
(519) by 3:00 p.m., New York City time, on the Calculation Date pertaining to
such Treasury Interest Determination Date, then the Treasury Rate shall be
calculated by the Calculation Agent and shall be a yield to maturity (expressed
as a bond equivalent on the basis of a year of 365 or 366 days, as applicable,
and applied on a daily basis) of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 p.m., New York City time, on such Treasury
Interest Determination Date, of three leading primary United States government
securities dealers in the City of New York selected by the Calculation Agent for
the issue of Treasury bills with a remaining maturity closest to the Index
Maturity designated in the applicable Authentication Certificate; provided,
however, that if fewer than three dealers selected as aforesaid by the
Calculation Agent are quoting as specified in this sentence, the Treasury Rate
with respect to such Treasury Interest Determination Date will remain the
Treasury Rate in effect on such Treasury Interest Determination Date.
Determination of CMT Rate
If the Interest Rate Basis specified above with respect to any Interest
Period is the CMT Rate, this Note is a "CMT Rate Note" with respect to such
Interest Period and the interest rate
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with respect to this Note for any Interest Reset Date relating to such Interest
Period shall be the CMT Rate plus or minus the Spread, if any, or multiplied by
the Spread Multiplier, if any, as specified above, as determined on the
applicable CMT Interest Determination Date (as defined below).
Unless otherwise specified above, "CMT Rate" means, with respect to any
CMT Interest Determination Date, the rate displayed on the Designated CMT
Telerate Page (as defined below) under the caption ". . . . Treasury Constant
Maturities . . . Federal Reserve Board Release H.15," or any successor caption,
under the column for the Designated CMT Maturity Index (as defined below) for
(i) if the Designated CMT Telerate Page is 7051, the rate on such CMT Rate
Interest Determination Date and (ii) if the Designated CMT Telerate Page is
7052, the week or the month, as applicable, ended immediately preceding the week
in which the related CMT Interest Determination Date occurs. If such rate is no
longer displayed on the relevant page, or is not displayed by 3:00 p.m., New
York City time on the related Calculation Date, then the CMT Rate for such CMT
Interest Determination Date will be such Treasury Constant Maturity rate for the
Designated CMT Maturity Index as published by either the Board of Governors of
the Federal Reserve System or the United States Department of the Treasury that
the Calculation Agent determines to be comparable to the rate formerly displayed
on the Designated CMT Telerate Page and published in the relevant H.15 (519) or
any successor publication. If such information is not provided by 3:00 p.m.,
New York City time, on the related Calculation Date, then the CMT Rate for the
CMT Interest Determination Date will be calculated by the Calculation Agent and
will be a yield to maturity, based on the arithmetic mean of the secondary
market closing offer side prices as of approximately 3:30 p.m., New York City
time, on the CMT Interest Determination Date reported, according to their
written records, by three leading primary United States government securities
dealers (each a "Reference Dealer") in the City of New York selected by the
Calculation Agent (from five such Reference Dealers selected by the Calculation
Agent and eliminating the highest quotation (or, in the event of equality, one
of the highest) and the lowest quotation, (or in the event of equality, one of
the lowest)), for the most recently issued direct noncallable fixed rate
obligations of the United States ("Treasury Notes") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent cannot obtain three such Treasury Note quotations, the CMT
Rate for such CMT Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic mean
of the secondary market offer side prices as of approximately 3:30 p.m., New
York City time, on the CMT Interest Determination Date of three Reference
Dealers in the City of New York (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation, (or in the event of
equality, one of the lowest)), for Treasury Notes with an original maturity of
the number of years that is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the Designated CMT Maturity
Index and in an amount of at least $100 million. If three or four (and not five)
of such Reference Dealers are quoting as described above, then the CMT Rate will
be based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes will be eliminated; provided, however, if
fewer than three Reference Dealers selected by the Calculation Agent are quoting
as described herein, the CMT Rate will be the CMT Rate in effect on such CMT
Interest Determination Date. If two Treasury Notes with an original maturity as
described in the third
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preceding sentence, have remaining terms to maturity equally close to the
Designated CMT Maturity Index, the quotes for the CMT Rate Note with the shorter
remaining term to maturity will be used.
"Designated CMT Telerate Pate" means the display on the Telerate Service,
or any successor service, on the page designated in the applicable
Authentication Certificate (or any other page as may replace such page on that
service for the purpose of displaying Treasury Constant Maturities as reported
in H.15 (519)), for the purpose of displaying Treasury Constant Maturities as
reported in H.15 (519). If no such page is specified in the applicable
Authentication Certificate, the Designated CMT Telerate Page shall be 7052 for
the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified in the applicable Authentication Certificate with respect to which the
CMT Rate will be calculated. If no such maturity is specified in the applicable
Authentication Certificate, the Designated CMT Maturity Index shall be two
years.
General
Notwithstanding the determination of the interest rate as provided above,
the interest rate on this Note for any Interest Period shall not be greater than
the Maximum Interest Rate, if any, or less than the Minimum Interest Rate, if
any, specified above. The interest rate on this Note will in no event be higher
than the maximum rate permitted by New York law as the same may be modified by
the United States law of general application.
On or before each Calculation Date (as defined below), the Calculation
Agent specified above, as Calculation Agent (the "Calculation Agent") will
determine the interest rate in accordance with the foregoing with respect to the
applicable Interest Rate Basis and will notify the Paying Agent. The Paying
Agent will determine the Accrued Interest Factor (as defined below) applicable
to this Note. The Paying Agent will, upon the request of the Holder of this
Note, provide the interest rate then in effect and the interest rate which will
become effective as a result of a determination made with respect to the most
recent Interest Determination Date with respect to this Note. The
determinations of interest rates made by the Calculation Agent shall be
conclusive and binding, and neither the Trustee nor the Paying Agent shall have
the duty to verify determinations of interest rates made by the Calculation
Agent. The determinations of Accrued Interest Factors made by the Paying Agent
shall be conclusive and binding. Unless otherwise specified above under "Other
Terms," the "Calculation Date," if applicable, pertaining to any Interest
Determination Date on a Note will be the earlier of (i) the tenth calendar day
after such Interest Determination Date, or, if any such day is not a Business
Day, the next succeeding Business Day, and (ii) the Business Day immediately
preceding the applicable Interest Payment Date or the Maturity Date or
Redemption or Repayment Date, as the case may be. The Company undertakes to
maintain a Calculation Agent for so long as this note remains outstanding.
As used herein, "Interest Determination Date" means the date as of which
the interest rate for this Note is to be calculated, to be effective as of the
following Interest Reset Date and
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calculated on the related Calculation Date. Unless otherwise specified above
under "Other Terms," the Interest Determination Date pertaining to an Interest
Reset Date for a Commercial Paper Rate Note, a Federal Funds Rate Note, a Prime
Rate Note, a CD Rate Note, or a CMT Rate Note (the "Commercial Paper Interest
Determination Date," the "Federal Funds Interest Determination Date," the "Prime
Interest Determination Date," the "CD Interest Determination Date," and the "CMT
Interest Determination Date," respectively) will be the second Business Day
prior to such Interest Reset Date. Unless otherwise specified above under "Other
Terms," the Interest Determination Date pertaining to an Interest Reset Date,
for a LIBOR Note (the "LIBOR Interest Determination Date") will be the second
London banking day preceding that Interest Reset Date. Above under "Other
Terms," the Interest Determination Date pertaining to an Interest Reset Date for
a Treasury Rate Note (the "Treasury Interest Determination Date") will be the
day of the week on which Treasury bills would normally be auctioned in the week
in which such Interest Reset Date falls. If, as the result of a legal holiday,
an auction for Treasury bills is held on the Friday preceding the normal Monday
auction date, such Friday will be the Treasury Interest Determination Date
pertaining to the Interest Reset Date occurring in the next succeeding week. If
an auction date shall fall on any Interest Reset Date for a Treasury Rate Note,
then such Interest Reset Date shall instead be the first Business Day
immediately following such auction date. The Interest Determination Date
pertaining to a Note the interest rate of which is determined by reference to
two or more Interest Rate Bases will be the latest Business Day which is at
least two Business Days prior to such Interest Reset Date for such Note on which
each Interest Rate Basis is determinable.
Unless otherwise specified above under "Other Terms," interest payments on
an Interest Payment Date for this Note will include interest accrued from, and
including, the next preceding Interest Payment Date to which interest has been
paid or duly provided for (or from, and including, the date of issue if no
interest has been paid or duly provided for) to, but excluding, such Interest
Payment Date (each such interest accrual period, an "Interest Period"). At the
Maturity Date hereof or on any applicable Redemption or Repayment Date, the
interest payable shall include interest accrued to, but excluding the Maturity
Date or such Redemption Date or Repayment Date. Accrued interest from the
Original Issue Date or from the last date to which interest has been paid or
duly provided for to the date for which interest is being calculated shall be
calculated by multiplying the face amount of this Note by the applicable accrued
interest factor (the "Accrued Interest Factor"). The Accrued Interest Factor
shall be computed by adding together the interest factors calculated for each
day from the Original Issue Date, or from the last date to which interest has
been paid or duly provided for to, but excluding, the date for which accrued
interest is being calculated. The interest factor for each such day shall be
computed by dividing the per annum interest rate applicable to such day by 360
in the case of Commercial Paper Rate Notes, Federal Funds Rate Notes, LIBOR
Notes, Prime Rate Notes and CD Rate Notes, or by the actual number of days in
the year in the case of Treasury Rate Notes and CMT Rate Notes. The interest
rate in effect on each day will be (i) if such day is an Interest Reset Date,
the interest rate with respect to the Interest Determination Date pertaining to
such Interest Reset Date or (ii) if such day is not an Interest Reset Date, the
interest rate with respect to the Interest Determination Date pertaining to the
next preceding Interest Reset Date, subject in either case to any maximum or
minimum interest rate limitation referred to above.
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Unless otherwise specified above under "Other Terms," all percentages
resulting from any calculation on this Note will be rounded, if necessary, to
the nearest one hundred-thousandth of one percentage point, with five one-
millionths of one percentage point rounded upward (e.g., 9.876545% (or
.09876545) being rounded to 9.87655% (or .0987655) and 9.876544% (or .09876544)
being rounded to 9.87654% (or .0987654)); all calculations of the Accrued
Interest Factor for any day on this Note will be rounded, if necessary, to the
nearest one hundred-millionth, with five one-billionths rounded upward (e.g.
.098765455 being rounded to .09876546 and .098765454 being rounded to
.09876545); and all currency or composite currency amounts used in or resulting
from such calculations on this Note will be rounded to the nearest cent (with
one-half cent being rounded upward).
Miscellaneous Provisions
If an Event of Default with respect to Notes of this series shall occur and
be continuing, the principal of all the Notes of this series may (subject to the
conditions set forth in the Indenture) be declared due and payable in the manner
and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the
Company's obligations in respect of (i) the entire indebtedness of this Note or
(ii) certain restrictive covenants with respect to this Note, in each case upon
compliance with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in aggregate principal amount of the
Notes at the time Outstanding of each series to be affected and, for certain
purposes, without the consent of the Holders of any Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Notes of each series
at the time Outstanding, on behalf of the Holders of all Notes of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Note at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Security Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in any place where the principal of
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(and premium, if any) and interest on this Note are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Notes of this series, of like tenor and of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
Unless otherwise set forth above, under "Other Terms," the Notes of this
series are issuable only in registered form without coupons in denominations of
$1,000 and any amount in excess thereof which is an integral multiple of $1,000.
As provided in the Indenture and subject to certain limitations therein set
forth, Notes of this series are exchangeable for a like aggregate principal
amount of Notes of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered in the Security Register as the
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Note may have such additional or different terms as are set forth
above under "Other Terms." Any terms so set forth shall be deemed to modify
and/or supersede, as necessary, any other terms set forth in this Note.
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
-15-
<PAGE>
____________________
ABBREVIATIONS
The following abbreviations, when used in this instrument, shall be
construed as though they were written out in full according to applicable laws
or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT -- _______________ Custodian______________
(Cust) (Minor)
under Uniform Gift to Minors Act
___________________
(State)
Additional abbreviations may be used though not in the above list.
____________________
-16-
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________________________________________________
(Name and address of assignee, including zip code, must be printed or
typewritten)
________________________________________________________________________________
the within Note, and all rights thereunder, hereby irrevocably constituting and
appointing
_______________________________________________________________________Attorney
to transfer said Note on the books of the within Company, with full power of
substitution in the premises
Dated ________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the within Note in every particular, without alteration or
enlargement or any change whatever and must be guaranteed by a commercial bank
or trust company having its principal office or a correspondent in the City of
New York or by a member of the New York Stock Exchange.
-17-
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to
repay the within Note (or portion thereof specified below) pursuant to its terms
at the applicable Repayment Price, together with interest to the Repayment Date,
to the undersigned at:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to repaid,
specify the portion thereof which the undersigned elects to have prepaid:
_______________________________________________; and specify the denomination or
denominations (which shall not be less than the minimum authorized denomination)
of the Notes to be issued to the undersigned for the portion of the within Note
not being repaid (in the absence of any such specifications, one such Note will
be issued for the portion not being repaid): ______________________________
Dated _______________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the within Note in every particular, without alteration or
enlargement or any change whatever.
-18-
<PAGE>
EXHIBIT 4.3(C)
This Note is a Global Security within the meaning of the Indenture
referred to herein and is registered in the name of a Depositary or a
nominee of a Depositary. Unless this certificate is presented by an
authorized representative of The Depository Trust Company (55 Water
Street, New York, New York) to the issuer or to its agent for
registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust
Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an interest herein.
JOSTENS, INC.
Medium-Term Note, Series A
(Global Original Issue Discount Zero Coupon Note)
REGISTERED REGISTERED
Principal Amount:
No. AC-
$________________
CUSIP NO.________
ORIGINAL ISSUE DATE: MATURITY DATE:
OTHER TERMS: REDEMPTION TERMS:
ORIGINAL ISSUE DISCOUNT:
YIELD TO MATURITY: REPAYMENT TERMS:
FOR PURPOSES OF SECTION 1273 AND 1275 OF THE INTERNAL REVENUE CODE, THE
AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS NOTE IS THE PERCENTAGE OF ITS
PRINCIPAL AMOUNT SET FORTH ABOVE AND THE YIELD TO MATURITY IS THE PERCENTAGE SET
FORTH ABOVE.
<PAGE>
Jostens, Inc., a corporation duly organized and existing under the laws of
Minnesota (herein called the "Company", which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to
or registered assigns, the principal sum of__________________________ DOLLARS on
the Maturity Date shown above.
The principal of this Note shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or repayment
or at the Maturity Date, and in such case the overdue principal of this Note
shall bear interest at a rate which is equivalent to the yield to maturity
stated above (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the Maturity Date or the date payment is
due upon acceleration or redemption or repayment, as the case may be, to the
date payment of such principal has been made or duly provided for. Interest on
any overdue principal shall be payable upon demand. Any such interest on any
overdue principal that is not so paid on demand shall bear interest at the same
rate as the interest on the overdue principal (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable upon demand. In the
event that the Maturity Date or any applicable Redemption Date or Repayment Date
is not a Business Day, the principal otherwise payable on such Maturity Date or
any applicable Redemption Date or Repayment Date will be paid on the next
succeeding Business Day with the same force and effect as if made on such
Maturity Date, Redemption Date or Repayment Date.
Payment of the principal of (and premium, if any) and interest on this Note
will be made in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts.
Payment of the principal of (and premium, if any) and interest on this Note due
on the Maturity Date or any applicable Redemption Date or Repayment Date will be
made in immediately available funds upon presentation of this Note at the
Corporate Trust Office of the Trustee in the City of Minneapolis, Minnesota or
at its agency in the City of New York.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
-2-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
JOSTENS, INC.
By______________________________
William N. Priesmeyer
Senior Vice President and
Chief Financial Officer
Attest:___________________________
Lee U. McGrath
Vice President and Treasurer
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities of the
series designated herein and issued
pursuant to the within-mentioned
Indenture.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By______________________________
Authorized Officer
-3-
<PAGE>
JOSTENS, INC.
Medium-Term Note, Series A
(Global Original Issue Discount Zero Coupon Note)
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Notes"), issued or to be issued in one or more series under
an Indenture, dated as of August 30, 1999 (herein called the "Indenture"),
between the Company and Norwest Bank Minnesota, National Association, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Notes and of the terms upon which the Notes are, and are to be
authenticated and delivered. This Note is one of the series designated on the
face hereof. By the terms of the Indenture, additional Notes of this series and
of other separate series, which may vary as to date, amount, Maturity Date,
interest rate or method of calculating the interest rate and in other respects
as therein provided, may be issued in an unlimited principal amount.
If a Redemption Commencement Date or periods within which Redemption Dates
may occur and the related Redemption Prices (unless otherwise specified above
under "Other Terms," expressed as percentages of the Amortized Face Amount (as
defined below) of this Note are set forth under "Redemption Terms," this Note is
subject redemption prior to the Maturity Date upon not less than 30 nor more
than 60 days' notice by mail to the Person in whose name this Note is registered
at such address as shall appear in the registry books of the Company, on any
Redemption Date so specified or occurring within any period so specified, as a
whole or in part, at the election of the Company. In the event of redemption of
this Note in part only, a new Note of this series and of like tenor of an
authorized denomination for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof. This Note is not
subject to any sinking fund.
If a Repayment Date or periods within which Repayment Dates may occur and
the related Repayment Prices (unless otherwise specified above under "Other
Terms," expressed as percentages of the Amortized Face Amount of this Note, are
set forth above under "Repayment Terms," this Note is subject to repayment at
the option of the Holder hereof prior to the Maturity Date upon such terms as
are set forth above under "Repayment Terms." In the event of repayment of this
Note in part only, a new Note of this series and of like tenor of an authorized
denomination of the portion hereof not repaid will be issued in the name of the
Holder hereof upon the cancellation hereof.
If an Event of Default with respect to Notes of this series shall occur and
be continuing, the Amortized Face Amount of this Note may (subject to the
conditions set forth in the Indenture) be declared due and payable in the manner
and with the effect provided in the Indenture. Upon payment (i) of the amount
of principal so declared due and payable and (ii) of interest on any overdue
principal and overdue interest (in each case to the extent that the payment
-4-
<PAGE>
of such interest shall be legally enforceable), all of the Company's obligations
in respect of the payment of the principal of and interest, if any, on this Note
shall terminate.
The amount due and payable on this Note in the event that this Note is
redeemed or repaid shall, unless otherwise indicated above under "Other Terms,"
be the specified percentage of the Amortized Face Amount of this Note on the day
such payment is due and payable, as determined by the Company.
The "Amortized Face Amount" of this Note shall be the amount equal to the
sum of (i) the issue price (as defined below) of this Note and (ii) that portion
of the difference between the issue price and the principal amount of this Note
due at the Maturity Date thereof that has been amortized at the Stated Yield (as
defined below) of this Note (computed in accordance with Section 1272(a)(4) of
the Internal Revenue Code of 1986, as amended, and Section 1.1275-1(b) of the
Treasury Regulations regarding original issue discount issued by the Treasury
Department in January 1994 (the "Regulations"), in each case as in effect on the
issue date of this Note) at the date as of which the Amortized Face Amount is
calculated, but in no event can the Amortized Face Amount exceed the principal
amount of this Note due at the Maturity Date hereof. As used in the preceding
sentence, the term "issue price" means the principal amount of this Note due at
the Maturity Date hereof less the Original Issue Discount of this Note specified
above. The term "Stated Yield" of this Note means the Yield to Maturity
specified above for the period from the Original Issue Date of this Note
specified above, to the Maturity Date hereof based on the issue price and
principal amount payable at the Maturity Date hereof.
The Indenture contains provisions for defeasance at any time of the
Company's obligations in respect of (i) the entire indebtedness of this Note or
(ii) certain restrictive covenants with respect to this Note, in each case upon
compliance with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in aggregate principal amount of the
Notes at the time Outstanding of each series to be affected and, for certain
purposes, without the consent of the Holders of any Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Notes of each series
at the time Outstanding, on behalf of the Holders of all Notes of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
-5-
<PAGE>
In determining whether the Holders of the requisite principal amount of the
Outstanding Notes have given any request, demand, authorization, direction,
notice, consent or waiver under the Indenture or whether a quorum is present at
a meeting of Holders of Notes, the principal amount of any 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 the acceleration of the Maturity thereof.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Note at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Security Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in any place where the principal of (and premium, if any) and
interest on this Note are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Notes of this series, of
like tenor and of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
Unless otherwise set forth above, under "Other Terms," the Notes of this
series are issuable only in registered form without coupons in denominations of
$1,000 and any amount in excess thereof which is an integral multiple of $1,000.
As provided in the Indenture and subject to certain limitations therein set
forth, Notes of this series are exchangeable for a like aggregate principal
amount of Notes of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered in the Security Register as the
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Note may have such additional or different terms as are set forth
above under "Other Terms." Any terms so set forth shall be deemed to modify
and/or supersede, as necessary, any other terms set forth in this Note.
-6-
<PAGE>
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
____________________
ABBREVIATIONS
The following abbreviations, when used in this instrument, shall be
construed as though they were written out in full according to applicable laws
or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT -- _______________ Custodian______________
(Cust) (Minor)
under Uniform Gift to Minors Act
___________________
(State)
Additional abbreviations may be used though not in the above list.
____________________
-7-
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________________________________________________
(Name and address of assignee, including zip code, must be printed or
typewritten)
________________________________________________________________________________
the within Note, and all rights thereunder, hereby irrevocably constituting and
appointing
________________________________________________________________________Attorney
to transfer said Note on the books of the within Company, with full power of
substitution in the premises
Dated ________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the within Note in every particular, without alteration or
enlargement or any change whatever and must be guaranteed by a commercial bank
or trust company having its principal office or a correspondent in the City of
New York or by a member of the New York Stock Exchange.
-8-
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to
repay the within Note (or portion thereof specified below) pursuant to its terms
at the applicable Repayment Price, together with interest to the Repayment Date,
to the undersigned at:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to repaid,
specify the portion thereof which the undersigned elects to have prepaid:
_______________________________________________; and specify the denomination or
denominations (which shall not be less than the minimum authorized denomination)
of the Notes to be issued to the undersigned for the portion of the within Note
not being repaid (in the absence of any such specifications, one such Note will
be issued for the portion not being repaid): ______________________________
Dated _______________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the within Note in every particular, without alteration or
enlargement or any change whatever.
-9-
<PAGE>
EXHIBIT 4.3(D)
This Note is a Global Security within the meaning of the Indenture
referred to herein and is registered in the name of a Depositary or a
nominee of a Depositary. Unless this certificate is presented by an
authorized representative of The Depository Trust Company (55 Water
Street, New York, New York) to the issuer or to its agent for
registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust
Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an interest herein.
JOSTENS, INC.
Medium-Term Note, Series A
(Global Original Issue Discount Fixed Rate Note)
REGISTERED REGISTERED
Principal Amount:
No. AD-
$
----------------
CUSIP NO.________
ORIGINAL ISSUE DATE: MATURITY DATE:
INTEREST RATE: REDEMPTION TERMS:
OTHER TERMS: REPAYMENT TERMS:
ORIGINAL ISSUE DISCOUNT: YIELD TO MATURITY:
[ ] ORIGINAL ISSUE DISCOUNT NOTE [ ] ORIGINAL ISSUE DISCOUNT
SUBJECT TO "SPECIAL PROVISIONS" FOR FEDERAL INCOME TAX
BELOW PURPOSES ONLY
FOR PURPOSES OF SECTION 1273 AND 1275 OF THE INTERNAL REVENUE CODE, THE
AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS NOTE IS THE PERCENTAGE OF ITS
PRINCIPAL AMOUNT SET FORTH ABOVE AND THE YIELD TO MATURITY IS THE PERCENTAGE SET
FORTH ABOVE.
<PAGE>
Jostens, Inc., a corporation duly organized and existing under the laws of
Minnesota (herein called the "Company", which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to
or registered assigns, the principal sum of ______________________ DOLLARS on
the Maturity Date shown above, or together with any premium thereon, upon any
applicable Redemption Date or Repayment Date (subject to the "Special
Provisions" below, if applicable), and to pay interest on such principal sum
from the Original Issue Date shown above or other date specified under "Other
Terms" above or from and including the most recent Interest Payment Date to
which interest has been paid or duly provided for, on each February 15 and
August 15 or such other dates, if any, as are specified under "Other Terms"
above (the "Interest Payment Dates") and on the Maturity Date, commencing with
the Interest Payment Date immediately following the Original Issue Date, at the
rate per annum equal to the Interest Rate shown above, until the principal
hereof is paid or made available for payment; provided, however, that if the
Original Issue Date is after a Regular Record Date and on or before the
immediately following Interest Payment Date, interest payments will commence on
the Interest Payment date following the next succeeding Regular Record Date.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest, which shall,
unless otherwise specified under "Other Terms" above, be on the February 1 and
August 1 (whether or not a Business Day), as the case may be, next preceding
such February 15 and August 15 Interest Payment Dates; provided, however, that
interest payable on the Maturity Date of this Note or any applicable Redemption
Date or Repayment Date that is not an Interest Payment Date shall be payable to
the Person to whom principal shall be payable. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Note (or one or more Predecessor Notes) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to the Holder of this
Note not less than 10 days prior to such Special Record Date, or be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes of this series may be listed, and upon
such notice as may be required by such exchange, all as more fully provided in
said Indenture. In the event that any Interest Payment Date or the Maturity Date
or any applicable Redemption Date or Repayment Date is not a Business Day, the
interest and, with respect to the Maturity Date or any applicable Redemption
Date or Repayment Date, principal otherwise payable on such date will be paid on
the next succeeding Business Day with the same force and effect as if made on
such Interest Payment Date, Maturity Date, Redemption Date or Repayment Date.
Payment of the principal of (and premium, if any) and interest on this Note
will be made in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts.
Payment of the principal of (and premium, if any) and interest on this Note due
on the Maturity Date or any applicable Redemption Date or Repayment Date will be
made in immediately available funds upon presentation of this Note at the
Corporate Trust Office of the Trustee in the City of Minneapolis, Minnesota or
at its agency in the City of
-2-
<PAGE>
New York. Interest on this Note shall be computed on the basis of a 360-day year
of twelve 30-day months.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
JOSTENS, INC.
By [specimen]
--------------------------------
William N. Priesmeyer
Senior Vice President and
Chief Financial Officer
Attest: [specimen]
---------------------------
Lee U. McGrath
Vice President and Treasurer
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities of the
series designated herein and issued
pursuant to the within-mentioned
Indenture.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By______________________________
Authorized Officer
-3-
<PAGE>
JOSTENS, INC.
Medium-Term Note, Series A
(Global Original Issue Discount Fixed Rate Note)
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Notes"), issued or to be issued in one or more series under
an Indenture, dated as of August 30, 1999 (herein called the "Indenture"),
between the Company and Norwest Bank Minnesota, National Association, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Notes and of the terms upon which the Notes are, and are to be
authenticated and delivered. This Note is one of the series designated on the
face hereof. By the terms of the Indenture, additional Notes of this series and
of other separate series, which may vary as to date, amount, Maturity Date,
interest rate or method of calculating the interest rate and in other respects
as therein provided, may be issued in an unlimited principal amount.
If a Redemption Commencement Date or periods within which Redemption Dates
may occur and the related Redemption Prices (unless otherwise specified above
under "Other Terms," expressed as percentages of the principal amount of this
Note if this Note is an Original Issue Discount Note for federal income tax
purposes only as shown above and as percentages of the Amortized Face Amount (as
defined below) of this Note if this Note is an Original Issue Discount Note
subject to the "Special Provisions" below as shown above) are set forth under
"Redemption Terms," this Note is subject redemption prior to the Maturity Date
upon not less than 30 nor more than 60 days' notice by mail to the Person in
whose name this Note is registered at such address as shall appear in the
registry books of the Company, on any Redemption Date so specified or occurring
within any period so specified, as a whole or in part, at the election of the
Company, at the applicable Redemption Price so specified, together in the case
of any such redemption with accrued interest to the Redemption Date; provided,
however, that installments of interest whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holder of this Note (or one or more
predecessor Notes) at the close of business on the relevant Regular Record Dates
referred to above, all as provided in the Indenture. In the event of redemption
of this Note in part only, a new Note of this series and of like tenor of an
authorized denomination for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof. This Note is not
subject to any sinking fund.
If a Repayment Date or periods within which Repayment Dates may occur and
the related Repayment Prices (unless otherwise specified above under "Other
Terms," expressed as percentages of the principal amount of this Note if this
Note is an Original Issue Discount Note for federal income tax purposes only as
shown above and as percentages of the Amortized Face Amount (as defined below)
of this Note if this Note is an Original Issue Discount Note subject to the
"Special Provisions" below as shown above) are set forth above under "Repayment
Terms," this Note is subject to repayment at the option of the Holder hereof
prior to the Maturity Date upon such terms as are set forth above under
"Repayment Terms." In the event of repayment of this Note in part only, a new
Note of this series and of like tenor of an authorized denomination
-4-
<PAGE>
of the portion hereof not repaid will be issued in the name of the Holder hereof
upon the cancellation hereof.
If an Event of Default with respect to Notes of this series shall occur and
be continuing, the principal due at the Stated Maturity (or, in the case of
Original Issue Discount Notes subject to the "Special Provisions" below as shown
above, the Amortized Face Amount) of the Notes of this series may (subject to
the conditions set forth in the Indenture) be declared due and payable in the
manner and with the effect provided in the Indenture. Upon payment (i) of the
amount of principal so declared due and payable and (ii) of interest on any
overdue principal and overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the principal of and interest, if any,
on the Notes of this series shall terminate.
The Indenture contains provisions for defeasance at any time of the
Company's obligations in respect of (i) the entire indebtedness of this Note or
(ii) certain restrictive covenants with respect to this Note, in each case upon
compliance with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in aggregate principal amount of the
Notes at the time Outstanding of each series to be affected and, for certain
purposes, without the consent of the Holders of any Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Notes of each series
at the time Outstanding, on behalf of the Holders of all Notes of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
In determining whether the Holders of the requisite principal amount of the
Outstanding Notes have given any request, demand, authorization, direction,
notice, consent or waiver under the Indenture or whether a quorum is present at
a meeting of Holders of Notes, the principal amount of any 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 the acceleration of the Maturity thereof.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Note at the times, place and rate, and in the coin or currency,
herein prescribed.
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<PAGE>
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Security Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in any place where the principal of (and premium, if any) and
interest on this Note are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Notes of this series, of
like tenor and of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
Unless otherwise set forth above, under "Other Terms," the Notes of this
series are issuable only in registered form without coupons in denominations of
$1,000 and any amount in excess thereof which is an integral multiple of $1,000.
As provided in the Indenture and subject to certain limitations therein set
forth, Notes of this series are exchangeable for a like aggregate principal
amount of Notes of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered in the Security Register as the
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Note may have such additional or different terms as are set forth
above under "Other Terms." Any terms so set forth shall be deemed to modify
and/or supersede, as necessary, any other terms set forth in this Note.
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
SPECIAL PROVISIONS
Unless otherwise indicated above under "Other Terms", if this Note is an
Original Issue Discount Fixed Rate Note subject to these Special Provisions, as
indicated above, the amount due and payable on this Note in the event that the
principal amount hereof is declared due and payable prior to the Maturity Date
hereof or in the event that this Note is redeemed or repaid shall be the
Amortized Face Amount (as defined below) of this Note or, in the case of
redemption or repayment, the specified percentage of the Amortized Face Amount
of this Note on the date such payment is due and payable as determined by the
Company, plus any accrued
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<PAGE>
but unpaid "qualified stated interest" payments (as defined in the Treasury
Regulations regarding original issue discount issued by the Treasury Department
in January 1994 (the "Regulations")).
The "Amortized Face Amount" of this Note shall be the amount equal to the
sum of (i) the issue price (as defined below) of this Note and (ii) that portion
of the difference between the issue price and the principal amount of this Note
due at the Maturity Date thereof that has been amortized at the Stated Yield (as
defined below) of this Note (computed in accordance with Section 1272(a)(4) of
the Internal Revenue Code of 1986, as amended, and Section 1.1275-1(b) of the
Regulations, in each case as in effect on the issue date of this Note) at the
date as of which the Amortized Face Amount is calculated, but in no event can
the Amortized Face Amount exceed the principal amount of this Note due at the
Maturity Date hereof. As used in the preceding sentence, the term "issue price"
means the principal amount of this Note due at the Maturity Date hereof less the
Original Issue Discount of this Note specified above. The term "Stated Yield"
of this Note means the Yield to Maturity specified above for the period from the
Original Issue Date of this Note specified above, to the Maturity Date hereof
based on the issue price and principal amount payable at the Maturity Date
hereof.
____________________
ABBREVIATIONS
The following abbreviations, when used in this instrument, shall be
construed as though they were written out in full according to applicable laws
or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT ___________________ Custodian______________
(Cust) (Minor)
under Uniform Gift to Minors Act
___________________
(State)
Additional abbreviations may be used though not in the above list.
___________________
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<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________________________________________________
(Name and address of assignee, including zip code, must be printed or
typewritten)
________________________________________________________________________________
the within Note, and all rights thereunder, hereby irrevocably constituting and
appointing
________________________________________________________________________Attorney
to transfer said Note on the books of the within Company, with full power of
substitution in the premises
Dated ________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the within Note in every particular, without alteration or
enlargement or any change whatever and must be guaranteed by a commercial bank
or trust company having its principal office or a correspondent in the City of
New York or by a member of the New York Stock Exchange.
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<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to
repay the within Note (or portion thereof specified below) pursuant to its terms
at the applicable Repayment Price, together with interest to the Repayment Date,
to the undersigned at:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to repaid,
specify the portion thereof which the undersigned elects to have prepaid:
_______________________________________________; and specify the denomination or
denominations (which shall not be less than the minimum authorized denomination)
of the Notes to be issued to the undersigned for the portion of the within Note
not being repaid (in the absence of any such specifications, one such Note will
be issued for the portion not being repaid): ______________________________
Dated _______________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the within Note in every particular, without alteration or
enlargement or any change whatever.
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