As filed with the Securities and Exchange Commission on April 18,
1995
Registration No. 33- 69648
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1
to
FORM S-3
Registration Statement
Under
The Securities Act of 1933
KANSAS CITY SOUTHERN INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 44-0663509
(State of Incorporation) (I.R.S. Employer Identification No.)
114 West Eleventh Street
Kansas City, Missouri 64105
(816) 556-0303
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
JOSEPH D. MONELLO
Vice President - and Chief Financial Officer
Kansas City Southern Industries, Inc.
114 West Eleventh Street
Kansas City, Missouri 64105
(816) 556-0213
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
DIANE M. BEERS, ESQ. RICHARD P. BRUENING
JOHN F. MARVIN, ESQ. Kansas City Southern Industries,Inc.
Watson & Marshall 114 West Eleventh Street
L.C. Kansas City, Missouri 64105
1010 Grand Avenue
Kansas City, Missouri 64106-2271
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC:
from time to time after the effective date of this registration
statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. [X]
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective date
until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall
become effective on such date as the Commission, acting pursuant to
said Section 8(a), may determine.
<PAGE>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED _______________, 1995
Information herein is subject to completion or amendment. A
registration statement relating to these securities has been filed
with the Securities and Exchange Commission. These securities may
not be sold nor may offers to buy be accepted prior to the time the
registration statement becomes effective. This prospectus shall
not constitute an offer to sell or the solicitation of an offer to
buy nor shall there be any sale of these securities in any State in
which such offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any such
State.
Dated _____________, 1995
PROSPECTUS
KANSAS CITY SOUTHERN INDUSTRIES, INC.
$500,000,000
Securities
Kansas City Southern Industries, Inc. (the "Company") may
offer from time to time, together or separately, (i) shares of its
Common Stock, par value $.01 per share (the "Common
Stock"), (ii) shares of its New Series Preferred Stock, par value
$1 per share (the "Series Preferred Stock" and, together with the
Common Stock, the "Equity Securities"), (iii) its convertible debt
securities (the "Convertible Debt Securities"), which may be either
senior debt securities ("Convertible Senior Debt Securities") or
subordinated debt securities ("Convertible Subordinated Debt
Securities"), consisting of debentures, notes or other evidence of
indebtedness representing unsecured obligations of the Company
convertible into Common Stock, and (iv) its debt securities (the
"Debt Securities") (collectively the "Securities"), in
amounts, at prices and on terms to be determined at the time of
offering. The Securities offered pursuant to this Prospectus may
be issued in one or more issuances or series and will be limited to
$500,000,000 aggregate public offering price. Certain specific
terms of the particular Securities in respect of which this
Prospectus is being delivered (the "Offered Securities") are set
forth in the accompanying Prospectus Supplement (the "Prospectus
Supplement"), including, where applicable, in the case of Series
Preferred Stock, the specific title, and any dividend, liquidation,
redemption, voting and other rights, any terms for conversion into
Common Stock, the initial public offering price and other special
terms, and in the case of Convertible Debt Securities and Debt
Securities, the specific designation, aggregate principal amount,
the denomination, maturity, premium, if any, the interest rate
(which may be fixed or variable), time and method of calculating
payment of interest, if any, the place or places where principal
of, premium, if any, and interest, if any, will be payable, any
terms of redemption at the option of the Company or of the holder,
any sinking fund provisions, the initial public offering price and
other special terms, and in the case of Convertible Debt Securities
only, terms for conversion into Common Stock. If so specified in
the applicable Prospectus Supplement, Convertible Debt Securities
and Debt Securities of any series may be issued in whole or in part
in the form of one or more temporary or permanent global
securities.
The Convertible Senior Debt Securities and Debt Securities
will be unsecured general obligations of the Company and will rank
PARI PASSU with all other senior (that is, unsubordinated)
indebtedness of the Company. The Convertible Subordinated Debt
Securities will be subordinated in right of payment to all Senior
Debt (as hereinafter defined) of the Company .
Because the Company is a holding company, however, the Convertible
Debt Securities and the Debt Securities will be effectively
subordinated to the claims of creditors of the Company's
subsidiaries. At December 31, 1994 , the Company's
subsidiaries had an aggregate of $ 255.3 million of
indebtedness outstanding. See "Description of Convertible Debt
Securities and Debt Securities."
______________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Company may sell the Securities to or through
underwriters, through dealers or agents or directly to purchasers.
See "Plan of Distribution." The accompanying Prospectus Supplement
sets forth the names of any underwriters, dealers or agents
involved in the sale of the Securities in respect of which this
Prospectus is being delivered, and any applicable fee, commission
or discount arrangements with them.
This Prospectus may not be used to consummate sales of
Securities unless accompanied by a Prospectus Supplement.
________________________________
THE DATE OF THIS PROSPECTUS IS ________________,
1995 .
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-
ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET
PRICE OF THE SECURITIES OFFERED HEREBY AT LEVELS ABOVE THAT WHICH
MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY
BE EFFECTED ON THE NEW YORK STOCK EXCHANGE OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
This Prospectus constitutes a part of a registration statement
on Form S-3 (together with all amendments and exhibits, the "Regis-
tration Statement") filed by the Company with the Securities and
Exchange Commission (the "Commission") under the Securities Act of
1933, as amended (the "Securities Act"). This Prospectus does not
contain all of the information included in the Registration State-
ment, certain parts of which are omitted in accordance with the
rules and regulations of the Commission. Reference is made to the
Registration Statement and to the exhibits relating thereto for
further information with respect to the Company and the Securities
offered hereby.
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and, in accordance therewith, files reports, proxy state-
ments and other information with the Commission. Such reports,
proxy statements and other information can be inspected and copies
obtained at the public reference facilities maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the following Regional Offices of the
Commission: New York Regional Office, Seven World Trade Center,
13th Floor, New York City, New York 10048 and Chicago Regional
Office, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. The Registration Statement can be inspected at, and copies
thereof can be obtained at prescribed prices from, the Public
Reference Section of the Commission, Judiciary Plaza, 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549. In addition, such
reports and other information concerning the Company can be
inspected at the offices of the New York Stock Exchange, Inc., 20
Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed by the Company with
the Commission (File No. 1-4717) pursuant to the Exchange Act and
are incorporated by reference and made a part of this Prospectus:
1) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31,
1994 ; and
2) The Company's Current Report on Form 8-K dated
January 31, 1995 .
All documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this Prospectus and prior to the termination of
this offering shall be deemed to be incorporated by reference into
this Prospectus and to be a part hereof from the date of filing of
such documents. Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in
any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a
part of this Prospectus.
The Company will provide without charge to each person, in-
cluding any beneficial owner, to whom this Prospectus is delivered,
up on written or oral request of such person, a copy of any
and all documents incorporated herein by reference, other than
exhibits to such documents not specifically incorporated by
reference. Requests for such copies should be directed to Kansas
City Southern Industries, Inc., 114 West Eleventh Street, Kansas
City, Missouri 64105, Attention: Corporate Secretary, telephone
number (816) 556-0490.
THE COMPANY
Kansas City Southern Industries, Inc., through its operating
subsidiaries, is engaged primarily in the businesses of
transportation , information and transaction processing, and
financial asset management . The Company's principal
business activities involve (i) operating a Class I rail carrier
system; (ii) providing shareowner accounting and recordkeeping data
processing systems and related services primarily for
mutual funds, insurance companies and
financial services institutions ; and (iii) managing
investments for mutual funds and private accounts. The Company was
incorporated in the State of Delaware in 1962 . The
principal executive offices of the Company are located at 114 West
11th Street, Kansas City, Missouri 64105, and the Company's
telephone number is (816) 556-0303.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus
Supplement, net proceeds from the sale of the Securities are
expected to be added to the general funds of the Company and used
principally for general corporate purposes, including working
capital, capital expenditures and acquisitions of or investments in
businesses and assets.
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed
charges for the Company for the periods indicated. Earnings
represent income available for fixed charges, less equity in
undistributed earnings of less than 50% owned affiliates, plus
undistributed equity in 50% owned affiliates, minority interest in
consolidated subsidiaries, amortization of debt premium and costs,
together with interest and one-third of rents under long-term
operating leases deemed to be representative of an interest factor.
Fixed charges represent interest expense together with interest
capitalized,
one-third of rents under long-term operating
leases deemed to be representative of an interest factor , and
amortization of debt premium and costs.
PAGE
<PAGE>
Year Ended December 31,
1994 1993 1992 1991 1990
Excluding Interest on 3.28 3.68 3.40 2.88 2.58
Deposits of IFTC(1)
Including Interest on 3.14 3.43 2.98 2.44 2.23
Deposits of IFTC(1)
(1) Investors Fiduciary Trust Company ("IFTC"), formerly a
joint venture of DST Systems, Inc. ("DST") . DST,
a wholly-owned subsidiary of the Company, sold its 50%
interest in IFTC on January 31, 1995 to State Street
Boston Corporation.
DESCRIPTION OF CAPITAL STOCK
The following descriptions do not purport to be complete and
are subject to, and qualified in their entirety by reference to,
the more complete descriptions of the Company's stock set forth in
the Company's Certificate of Incorporation, as amended (the
"Certificate of Incorporation") and its Bylaws.
The authorized capital stock of the Company consists of (i)
400,000,000 shares of Common Stock, par value
$.01 per share ("Common Stock"), (ii) 2,000,000 shares of
New Series Preferred Stock, par value $1 per share ("Series
Preferred Stock"), and (iii) 840,000 shares of Preferred Stock, par
value $25 per share ("Preferred Stock").
As of
December 31, 1994 , there were outstanding
(i) 43,518,136 shares of Common Stock, (ii) employee
stock options to purchase an aggregate of 3,280,515
shares of Common Stock (of which options to purchase
2,488,665 shares of Common Stock were currently
exercisable), (iii) 243,170 shares of Preferred
Stock , and (iv) 1,000,000 shares of Series Preferred Stock
designated as Series B Convertible Preferred Stock ("Series B
Preferred Stock") . In addition, 150,000 shares of
Series Preferred Stock designated as Series Preferred Stock,
Series A, ("Series A Preferred Stock"), were authorized for
issuance if certain events relating to a change in control of the
Company should occur. As of such date, no shares of
Series A Preferred Stock were outstanding.
UMB Bank, N.A. , and the Company serve as the
Transfer Agents for the Company's Securities. The Company's Common
Stock and Preferred Stock are listed on the New York Stock
Exchange.
NO SHARES OF PREFERRED STOCK, SERIES A PREFERRED STOCK OR
SERIES B PREFERRED STOCK ARE BEING OFFERED HEREBY.
COMMON STOCK
Holders of Common Stock are entitled to receive dividends
when, as and if declared by the Board of Directors out of funds
legally available therefor, provided that, if any shares of Series
Preferred Stock or Preferred Stock are outstanding, no dividends or
other distributions may be made with respect to the Common Stock
unless full required dividends on the shares of Series Preferred
Stock and Preferred Stock have been paid, including accumulated
dividends in the case of any series of Series Preferred Stock
designated to receive cumulative dividends.
Holders of Common Stock are entitled to one vote per share
multiplied by the number of directors to be elected in an election
of directors, which may be cast cumulatively, and to one vote per
share on any other matter, voting as a single class. In certain
instances, holders of Series Preferred Stock or Preferred Stock may
have special class voting rights. See "Series Preferred
Stock" and " Preferred Stock."
In the event of the voluntary or involuntary dissolution,
liquidation or winding up of the Company, holders of Common Stock
are entitled to receive pro rata, after satisfaction in full of the
prior rights of creditors (including holders of the Company's
indebtedness) and holders of Series Preferred Stock and Preferred
Stock, all the remaining assets of the Company available for
distribution.
The issuance of additional shares of Series Preferred Stock or
Preferred Stock may result in a dilution of the voting power and
relative equity interests of the holders of Common Stock and would
subject the Common Stock to the prior dividend and liquidation
rights of the Series Preferred Stock and Preferred Stock issued.
The Common Stock is not redeemable and has no preemptive rights.
Any shares of Common Stock sold hereunder shall be fully paid
and nonassessable and will be listed on the New York Stock
Exchange.
SERIES PREFERRED STOCK
Under the Company's Certificate of Incorporation, the Board of
Directors of the Company is authorized, without further stockholder
action, to issue up to 2,000,000 shares of Series Preferred Stock
in one or more series, with such designations, powers, preferences,
rights, qualifications, limitations or restrictions, as shall be
set forth in a Certificate of Designation filed pursuant to the
General Corporation Law of the State of Delaware, subject to the
powers, preferences and rights of the Preferred Stock.
If any series of Series Preferred Stock entitles the holders
thereof to dividends, such dividends may be paid following the
payment or setting apart for payment of dividends on the Preferred
Stock and prior to the payment or setting apart for payment of
dividends on the Common Stock. If specified, dividends may be
cumulative. In the event of a liquidation, dissolution or winding
up of the Company, holders of each series of Series Preferred Stock
are subordinate to the holders of Preferred Stock, but have
preference and priority over the holders of Common Stock, for
payments of amounts as set forth in a Certificate of Designations.
The Series Preferred Stock has no preemptive rights.
Any shares of Series Preferred Stock sold hereunder shall be
fully paid and nonassessable and the Company will apply to list
such shares on the New York Stock Exchange.
SERIES A PREFERRED STOCK
The Board of Directors of the Company established the Series
A Preferred Stock , consisting of 150,000 shares, for
issuance pursuant to the Company's Stockholder Rights Plan (the
"Rights Plan"). No shares of Series A Preferred Stock have been
issued.
To implement the Rights Plan, the Company's Board of Directors
declared and made a dividend distribution of one Series A
Preferred Stock purchase right ("Right") for each outstanding share
of Common Stock of the Company, payable on May 27, 1986. Each
Right entitled the registered holder to purchase from the Company
one two-hundredth of a share of Series A Preferred Stock at an
exercise price of $50 per Right, subject to adjustment. All the
Rights were redeemed by the payment on September 20, 1994, of
$.0125 per share to the Common Stock holders of record on August
26, 1994.
SERIES B PREFERRED STOCK
The Board of Directors of the Company in 1993
authorized the establishment of Series B Preferred Stock,
consisting initially of 1,000,000 shares, for issuance to the
trustee of a grantor trust formed by the Company entitled "Employee
Plan Funding Trust" (the "Trust"). On October 1, 1993, the
Company sole 1,000,000 shares of Series B Preferred Stock to the
Trust. The Series B Preferred Stock can be held only by the
trustee of the Trust or on behalf of any employee plan designated
as a beneficiary of the Trust. Transfer of the Series B Preferred
Stock to any other person will cause the stock to be converted
automatically into Common Stock.
Holders of the Series B Preferred Stock are
entitled to have declared, paid or set aside for payment,
cumulative dividends, when, as and if declared by the Board of
Directors out of funds legally available therefor, in an amount of
$10 per share per year before the declaration, payment or setting
aside for payment of any dividends on the Common Stock or any other
stock ranking as to dividends junior to, or on a parity with, the
Series B Preferred Stock, but only after dividends on the Preferred
Stock have been paid or set aside for payment, with certain limited
exceptions.
Holders of Series B Preferred Stock have no voting rights not
required by law except with respect to actions which would
adversely alter or change the powers, preferences or special rights
of that security.
In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company, Series B Preferred
Holders shall be entitled to receive the amount of $200 per share
plus any declared and unpaid dividends, prior to any distribution
of assets to the holders of the Common Stock or any other class
ranking with respect to such distribution junior to the Series B
Preferred Stock, subject to the rights of holders of the Preferred
Stock and any other security ranking superior to or on a parity
with the Series B Preferred Stock.
Series B Preferred Stock is convertible into
Common Stock at an initial ratio of 4 shares of Common Stock for
each share of Series B Preferred Stock, subject to certain
adjustments, with a limitation on the maximum number of shares of
Common Stock which can be issued of 4,000,000 shares.
Series B Preferred Stock is redeemable by the
Company at any time (i) after April 1, 1995, (ii)
under certain circumstances, whenever the market price of the
Common Stock equals or exceeds 150% of the conversion price of the
Series B Preferred, with certain adjustments, (iii) in the event of
certain changes in federal tax law , and (iv) in the event that
the Trust or any employee plan designated as a beneficiary of the
Trust is terminated in accordance with its terms, in accordance
with a redemption price schedule and the terms specified in the
Certificate of Designations.
Anti-dilution protections and special provisions with respect
to the effect on the Series B Preferred Stock of mergers or
consolidations are also set forth in the Certificate of
Designations.
As a grantor trust, assets of the Trust, including the Series
B Preferred Stock, are expected to remain subject to the claims of
the general creditors of the Company until such assets are
distributed to the beneficiaries. The Series B Preferred Stock
was purchased by the Trust for $200,000,000 with
funds borrowed from the Company, secured by a pledge of such
securities. Shares held in the Trust will be
released for distribution to beneficiary plans in proportion to the
reduction of this indebtedness. Other provisions of the Trust (i)
require that the trustee vote any voting securities held in the
Trust in accordance with the voting of shares held in the Company's
ESOP and (ii) provide for termination of the Trust upon the
occurrence of defined events involving a change in control of the
Company.
PREFERRED STOCK
Holders of shares of Preferred Stock are entitled to receive,
in the discretion of the Board of Directors, noncumulative
dividends declared by the Board of Directors of up to $1 per share
per year, and no more, before dividends may be declared or paid
with respect to Common Stock or any series of Series Preferred
Stock.
Holders of Preferred Stock are entitled to one vote per share
multiplied by the number of directors to be elected in an election
of directors, which may be cast cumulatively, and to one vote per
share on other matters. Holders of Preferred Stock vote as a
single class with the holders of Common Stock and any series of
Series Preferred Stock having voting rights; however, whenever
dividends are in arrears on the Preferred Stock for six quarters,
the holders of Preferred Stock have the right to vote as a class to
elect two directors at the next annual stockholders' meeting at
which directors are elected and have such right until dividends
have been paid on the Preferred Stock for four consecutive
quarters. The vote of the holders of two-thirds of Preferred Stock
voting together as a class is required for any amendment to the
Company's Certificate of Incorporation which would materially and
adversely alter or change the powers, preferences or special rights
of such stock.
In the event of the voluntary or involuntary dissolution,
liquidation or winding up of the Company, holders of Preferred
Stock are entitled to receive payment in the amount of the par
value thereof, and any declared and unpaid dividends, but no more,
before any payment is made upon the Series Preferred Stock or the
Common Stock. The Preferred Stock is not redeemable by the Company
and has no preemptive rights.
CLASSIFIED BOARD OF DIRECTORS
The Company's Certificate of Incorporation provides that the
board of directors shall be divided into three classes as nearly
equal in number as possible. Each class of directors serves for a
term of three years and such terms commence in three consecutive
years so that one class of directors is elected at the annual
stockholders' meeting each year. The Company's Certificate of
Incorporation also provides that the vote of 70% of the shares
entitled to vote in the election of directors is required to amend
the Certificate of Incorporation to increase the number of
directors to more than eighteen, abolish cumulative voting
for directors and abolish the classification of the board. The
same vote requirement is imposed by the Certificate of
Incorporation on certain transactions involving mergers,
consolidations, sales or leases of assets having a fair market
value of $2,000,000 or more, with or to certain owners of more than
5% of the stock of the Company entitled to vote in the election of
directors, unless the board of directors has approved a memorandum
of understanding with any such owner prior to its becoming such a
5% holder. These provisions could have the effect of
delaying, deferring or preventing a change in control of the
Company.
DESCRIPTION OF CONVERTIBLE SENIOR DEBT SECURITIES
AND DEBT SECURITIES
The Convertible Senior Debt Securities and the Debt Securities
are to be issued under an indenture dated as of July 1, 1992 (the
"Indenture") between the Company and The Chase Manhattan Bank,
N.A., as trustee (the "Trustee"), as shall be set forth in the
Prospectus Supplement relating to the Convertible Senior Debt
Securities or Debt Securities being offered thereby. The statements
made under this heading relating to the Convertible Senior Debt
Securities and the Debt Securities and the Indenture are summaries
of the provisions thereof and do not purport to be complete, and,
where reference is made to particular provisions of the Indenture,
such provisions are incorporated by reference as a part of such
summaries, which are qualified in their entirety by such
references. Parenthetical references below are to the Indenture or
to sections of the Trust Indenture Act of 1939, as amended (the
"TIA"), certain provisions of which govern the terms of the
Indenture, and, whenever any particular provision of the Indenture
or the TIA or any defined term used therein is referred to, such
provision or defined term is incorporated by reference as a part of
the statement in connection with which such reference is made, and
the statement in connection with which such reference is made is
qualified in its entirety by such reference. Capitalized terms
used herein but not otherwise defined shall have the meaning
assigned to them in the Indenture.
GENERAL
The Convertible Senior Debt Securities and Debt Securities
will be direct, unsecured obligations of the Company and will rank
equally with all other unsecured and unsubordinated indebtedness of
the Company. At December 31, 1994 , the Company had
no secured indebtedness outstanding. The Company's assets consist
of the stock of its subsidiaries and interests in unconsolidated
affiliates. Accordingly, certain creditors of the Company's
subsidiaries will have a claim on the assets of such subsidiaries
prior to the Holders of the Convertible Senior Debt Securities or
Debt Securities. At December 31, 1994 , the Company's
subsidiaries had an aggregate of 255.3
million of indebtedness outstanding, of which $ 183.0
million was secured. In addition, the ability of the Company to
pay principal of, premium, if any, and interest on the Convertible
Senior Debt Securities and Debt Securities will depend on the
Company's receipt of funds from its subsidiaries and unconsolidated
affiliates. Kansas City Southern Railway Company
("KCSR"), a wholly-owned subsidiary of the Company, DST, Janus
Capital Corporation ("Janus"), 83% owned by the Company, and Berger
Associates, Inc. ("Berger"), over 80% owned by the Company, are not
subject to any restrictions on the payment of dividends.
Convertible Senior Debt Securities and Debt Securities will be
issued in separate series. The Convertible Senior Debt Securities
and Debt Securities may be issued in one or more series. The
particular terms of each series of Convertible Senior Debt
Securities and Debt Securities, as well as any modifications of or
additions to the general terms of the Convertible Senior Debt
Securities and Debt Securities as described herein that may be
applicable in the case of a particular series of Convertible Senior
Debt Securities or Debt Securities, will be described in the
Prospectus Supplement relating to such series of Convertible Senior
Debt Securities and Debt Securities. Accordingly, for a
description of the terms of a particular series of Convertible
Senior Debt Securities and Debt Securities, reference must be made
to both the Prospectus Supplement relating thereto and the
description of Convertible Senior Debt Securities and Debt
Securities set forth in this Prospectus.
Reference is made to the Prospectus Supplement for the
following terms of the Convertible Senior Debt Securities or Debt
Securities being offered thereby: (1) the title of such Convertible
Senior Debt Securities or Debt Securities; (2) any limit on the
aggregate principal amount of such Convertible Senior Debt
Securities or Debt Securities; (3) the percentage of the principal
amount at which such Convertible Senior Debt Securities or Debt
Securities will be issued and, if other than the principal amount
thereof, the portion of the principal amount thereof payable upon
declaration of acceleration of the maturity thereof or the method
by which such portion shall be determined; (4) the date or dates,
or the method by which such date or dates will be determined or
extended, on which the principal of such Convertible Senior Debt
Securities or Debt Securities will be payable; (5) the rate or
rates at which such Convertible Senior Debt Securities or Debt
Securities will bear interest, if any, or the method by which such
rate or rates shall be determined; (6) the date or dates from which
interest, if any, on such Convertible Senior Debt Securities or
Debt Securities shall accrue or the method by which such date or
dates shall be determined, the dates on which such interest, if
any, will be payable and the Regular Record Date, if any, for the
interest payable on any Registered Security of the series on any
Interest Payment Date, or the method by which any such date shall
be determined, and the basis on which interest shall be calculated
if other than on the basis of a 360-day year of twelve 30-day
months; (7) the period or periods within which, the price or prices
at which, the Currency in which and the other terms and conditions
upon which such Convertible Senior Debt Securities or Debt
Securities may be redeemed in whole or in part, at the option of
the Company; (8) the obligation, if any, of the Company to redeem,
repay or purchase such Convertible Senior Debt Securities or Debt
Securities pursuant to any sinking fund or analogous provision or
at the option of a Holder thereof and the period or periods within
which or the date or dates on which, the price or prices at which,
the Currency in which and the other terms and conditions upon which
such Convertible Senior Debt Securities or Debt Securities shall be
redeemed, repaid or purchased, in whole or in part, pursuant to
such obligation; (9) whether such Convertible Senior Debt
Securities or Debt Securities are to be issuable as Registered
Securities or Bearer Securities or both, and whether such
Convertible Senior Debt Securities or Debt Securities are to be
issuable as Registered Securities or Bearer Securities or both, and
whether such Convertible Senior Debt Securities or Debt Securities
are to be issuable, either temporarily or permanently, in global
form and, if so, whether beneficial owners of interests in any such
permanent global security may exchange such interests for
Convertible Senior Debt Securities and Debt Securities of such
series and of like tenor of any authorized form and denomination
and the circumstances under which any such exchanges may occur, if
other than in the manner provided in the Indenture, and, if
Registered Securities of the series are to be issuable as a global
security, the identity of the depository for such series; (10) if
other than U.S. dollars, the Currency in which such Convertible
Senior Debt Securities or Debt Securities will be denominated and
in which the principal of (and premium, if any) and any interest on
such Convertible Senior Debt Securities or Debt Securities will be
payable; (11) whether the amount of payments of principal of (and
premium, if any) or interest, if any, on such Convertible Senior
Debt Securities or Debt Securities may be determined with reference
to an index, formula or other method (which index, formula or
method may be based on one or more Currencies, commodities, equity
indices or other indices) and the manner in which such amounts
shall be determined; (12) whether the Company or Holder may elect
payment of the principal of (and premium, if any) or interest, if
any, on such Convertible Senior Debt Securities or Debt Securities
in one or more Currencies other than that in which such Convertible
Senior Debt Securities or Debt Securities are denominated or stated
to be payable, the period or periods within which, and the terms
and conditions upon which, such election may be made, and the time
and manner of determining the exchange rate between the Currency in
which such Convertible Senior Debt Securities or Debt Securities
are denominated or stated to be payable and the Currency in which
such Convertible Senior Debt Securities or Debt Securities are to
be so payable; (13) the place or places, if any, other than or in
addition to New York City, New York, where the principal of (and
premium, if any) and any interest on such Convertible Senior Debt
Securities or Debt Securities shall be payable, any Registered
Securities of the series may be surrendered for registration of
transfer, such Convertible Senior Debt Securities or Debt
Securities may be surrendered for exchange and notice or demands to
or upon the Company in respect of such Convertible Senior Debt
Securities or Debt Securities and the Indenture may be served; (14)
if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of
the series shall be issuable and, if other than the denomination of
$5,000, the denomination or denominations in which any Bearer
Securities of the series shall be issuable; (15) the identity of
the Trustee for such Convertible Senior Debt Securities or Debt
Securities and, if other than the Trustee, the Security Registrar
and the Paying Agent; (16) the inapplicability to such Convertible
Senior Debt Securities or Debt Securities of the provisions of
Article Fourteen of the Indenture described herein under
"Defeasance and Covenant Defeasance" and any provisions in
modification of, in addition to or in lieu of any of the provisions
of such Article; (17) the Person to whom any interest on any
Registered Security of the series shall be payable, if other than
the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest, the manner in which, or the Person
to whom, any interest on any Bearer Security of the series shall be
payable, if otherwise than upon presentation and surrender of the
coupons appertaining thereto as they severally mature, and the
extent to which, or the manner in which, any interest payable on a
temporary global security on an Interest Payment Date will be paid
if other than in the manner provided in the Indenture; (18) whether
and under what circumstances the Company will pay Additional
Amounts as contemplated by Section 1005 of the Indenture on such
Convertible Senior Debt Securities or Debt Securities to any Holder
who is not a United States person (including any modification to
the definition of such terms as contained in the Indenture as
originally executed) in respect of any tax, assessment or
governmental charge and, if so, whether the Company will have the
option to redeem such Convertible Senior Debt Securities or Debt
Securities rather than pay such Additional Amounts (and the terms
of any such option); (19) any deletions from, modifications of or
additions to the Events of Default or covenants of the Company with
respect to such Convertible Senior Debt Securities or Debt
Securities, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth
herein; (20) the date as of which any Bearer Securities of the
series and any temporary global security shall be dated if other
than the date of original issuance of the first of such Convertible
Senior Debt Securities or Debt Securities; (21) if such Convertible
Senior Debt Securities or Debt Securities are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other
conditions, then the form or terms of such certificates, documents
or conditions; (22) the designation of the initial Exchange Rate
Agent, if any; (23) any other terms of such Convertible Senior Debt
Securities or Debt Securities; and (24) in the case of Convertible
Senior Debt Securities, the terms and conditions upon which
conversion will be effected, including the conversion price, the
conversion period and other conversion provisions in addition to or
in lieu of those described below.
The Indenture does not contain any provisions that may afford
the Holders of Convertible Senior Debt Securities or Debt
Securities of any series protection in the event of a highly
leveraged transaction or other transaction that may occur in
connection with a change of control of the Company. Payment of any
indebtedness outstanding under the Company's revolving credit
agreements, and under the ESOP secured term loan agreements of the
Company, would become accelerated at the time of any change in
control of the Company, as defined in those agreements. At
December 31, 1994 , the amount outstanding under these
credit and loan agreements aggregated approximately
$ 332.2 million. The Company is a party to an
agreement with the minority owners of Janus, and DST is a party to
agreements with its joint venture partners, which may impose
financial and other obligations upon the Company and DST,
respectively, in the event of a change in control of the Company,
as defined in such agreements. The Company also has a commitment
to fund, through so-called "rabbi trusts", the payment of certain
compensation and benefit continuations and severance payments of
management employees in the event of defined changes in control.
The aggregate amount of the Company's financial obligations under
the agreements governing the rabbi trusts and the Company's
investment in Janus and DST's joint venture partners,
cannot be determined in advance of any change-in-control event, but
is expected to be material.
The Indenture provides that the Convertible Senior Debt
Securities and Debt Securities may be issued in one or more series
thereunder, in each case as authorized from time to time by the
Board of Directors of the Company. (Section 301) The Indenture
also provides that there may be more than one Trustee under the
Indenture, each with respect to one or more different series of
Convertible Senior Debt Securities and Debt Securities. See
"Resignation of Trustee" herein. At a time when two or more
Trustees are acting, each with respect to only certain series, the
terms "Convertible Senior Debt Securities" and "Debt Securities" as
used herein shall mean the one or more series with respect to which
each respective Trustee is acting. In the event there is more than
one Trustee under the Indenture, the powers and trust obligations
of each Trustee as described herein shall extend only to the one or
more series of Convertible Senior Debt Securities and Debt
Securities for which it is Trustee. If more than one Trustee is
acting under the Indenture, then the Convertible Senior Debt
Securities and Debt Securities (whether of one or more than one
series) for which each Trustee is acting shall in effect be treated
as if issued under separate indentures.
Some of the Convertible Senior Debt Securities or Debt
Securities may be issued as original issue discount Securities
(bearing no interest or interest at a rate which at the time of
issuance is below market rates) ("Original Issue Discount
Securities"), to be sold at a substantial discount below their
stated principal amount. If any Convertible Senior Debt Security
or Debt Security is not to be denominated in United States dollars,
certain provisions with respect thereto will be set forth in a
Foreign Currency Prospectus Supplement, which will specify the
Currency or Currencies, including composite Currencies such as the
European Currency Unit, in which the principal, premium, if any,
and any interest with respect to such Convertible Senior Debt
Security or Debt Security are to be paid, along with any other
terms relating to the non-United States dollar denomination.
Federal income tax, accounting and other special considerations
applicable to any such Original Issue Discount Securities or non-
United States dollar denominated Convertible Senior Debt Securities
or Debt Securities will be described in a Prospectus Supplement
relating thereto.
The Indenture does not contain any provisions that would limit
the ability of the Company to incur indebtedness. Reference is
made to the Prospectus Supplement related to the series of
Convertible Senior Debt Securities or Debt Securities offered
thereby for information with respect to any deletions from,
modifications of or additions to the Events of Default or covenants
of the Company applicable to such Convertible Senior Debt
Securities or Debt Securities that are described herein.
Under the Indenture, the Company will have the ability, in
addition to the ability to issue Convertible Senior Debt Securities
or Debt Securities with terms different from those of Convertible
Senior Debt Securities or Debt Securities previously issued,
without the consent of the Holders, to reopen a previous issue of
a series of Convertible Senior Debt Securities or Debt Securities
and issue additional Convertible Senior Debt Securities or Debt
Securities of such series, in an aggregate principal amount
determined by the Company. (Section 301)
DENOMINATIONS, REGISTRATION AND TRANSFER
Convertible Senior Debt Securities or Debt Securities of a
series may be issuable solely as Registered Securities, solely as
Bearer Securities or as both Registered Securities and Bearer
Securities. Registered Securities will be issuable in
denominations of $1,000 and integral multiples of $1,000 and Bearer
Securities will be issuable in the denomination of $5,000 or, in
each case, in such other denominations as may be in the terms of
the Convertible Senior Debt Securities or Debt Securities of any
particular series. The Indenture also provides that Convertible
Senior Debt Securities or Debt Securities of a series may be
issuable in global form. Unless otherwise indicated in the
Prospectus Supplement, Bearer Securities will have interest coupons
attached. (Section 201)
Registered Securities of any series will be exchangeable for
other Registered Securities of the same series and of a like
aggregate principal amount and tenor of different authorized
denominations. If (but only if) provided in the Prospectus
Supplement, Bearer Securities (with all unmatured coupons, except
as provided below, and all matured coupons in default) of any
series may be exchanged for Registered Securities of the same
series of any authorized denominations and of a like aggregate
principal amount and tenor. In such event, Bearer Securities
surrendered in a permitted exchange for Registered Securities
between a Regular Record Date or a Special Record Date and the
relevant date for payment of interest shall be surrendered without
the coupon relating to such date for payment of interest, and
interest will not be payable on such date for payment of interest
in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such
coupon when due in accordance with the terms of the Indenture.
Unless otherwise specified in the Prospectus Supplement, Bearer
Securities will not be issued in exchange for Registered
Securities. (Section 305)
The Convertible Senior Debt Securities or Debt Securities may
be presented for exchange as described above, and Registered
Securities may be presented for registration of transfer (duly
endorsed or accompanied by a written instrument of transfer), at
the corporate trust office of the Trustee in New York City, New
York, or at the office of any transfer agent designated by the
Company for such purpose with respect to any series of Convertible
Senior Debt Securities or Debt Securities and referred to in the
Prospectus Supplement. No service charge will be made for any
transfer or exchange of Convertible Senior Debt Securities or Debt
Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection
therewith. (Section 305) If a Prospectus Supplement refers to any
transfer agent (in addition to the Trustee) initially designated by
the Company with respect to any series of Convertible Senior Debt
Securities or Debt Securities, then the Company may at any time
rescind the designation of any such transfer agent or approve a
change in the location through which any such transfer agent acts,
except that, if Convertible Senior Debt Securities or Debt
Securities of a series are issuable solely as Registered
Securities, then the Company will be required to maintain a
transfer agent in each Place of Payment for such series and, if
Convertible Senior Debt Securities or Debt Securities of a series
may be issuable both as Registered Securities and as Bearer
Securities, then the Company will be required to maintain (in
addition to the Trustee) a transfer agent in a Place of Payment for
such series located outside the United States. The Company may at
any time designate additional transfer agents with respect to any
series of Convertible Senior Debt Securities or Debt Securities.
(Section 1002)
The Company shall not be required to (i) issue, register the
transfer of or exchange Convertible Senior Debt Securities or Debt
Securities of any series during a period beginning at the opening
of business 15 days before any selection of Convertible Senior Debt
Securities or Debt Securities of that series to be redeemed and
ending at the close of business on (A) if the Convertible Senior
Debt Securities or Debt Securities of the series are issuable only
as Registered Securities, then the day of mailing of the relevant
notice of redemption and (B) if Convertible Senior Debt Securities
or Debt Securities of the series are issuable as Bearer Securities,
then the day of the first publication of the relevant notice of
redemption or, if Convertible Senior Debt Securities or Debt
Securities of the series are also issuable as Registered Securities
and there is no publication, then the mailing of the relevant
notice of redemption; (ii) register the transfer of or exchange any
Registered Security or portion thereof called for redemption,
except the unredeemed portion of any Registered Security being
redeemed in part; (iii) exchange any Bearer Security selected for
redemption, except to exchange such Bearer Security for a
Registered Security of that series and of like tenor that is
simultaneously surrendered for redemption; or (iv) issue, register
the transfer of or exchange any Convertible Senior Debt Securities
or Debt Security that has been surrendered for repayment at the
option of the Holder, except the portion, if any, thereof not to be
so repaid. (Section 305)
CONVERSION RIGHTS
The circumstances under which Convertible Senior Debt
Securities of any series are convertible into Common Stock and the
terms of such conversion will be set forth in the Prospectus
Supplement relating thereto. Such terms shall include provisions
as to whether conversion is mandatory, at the option of the Holder,
or at the option of the Company, and may include provisions in
which the number of shares of Common Stock to be received by the
Holder of Convertible Senior Debt Securities would be calculated
according to the market price of Common Stock as of a time stated
in the Prospectus Supplement.
GLOBAL SECURITIES
The Convertible Senior Debt Securities or Debt Securities of
a series may be issued in whole or in part in the form of one or
more global securities (each a "Global Security") that will be
deposited with, or on behalf of, the "Depository" identified in the
Prospectus Supplement relating to such series. Unless and until it
is exchanged in whole or in part for the individual Convertible
Senior Debt Securities or Debt Securities represented thereby, a
Global Security may not be transferred except as a whole by the
Depository for such Global Security to a nominee of such Depository
or by a nominee of such Depository to such Depository or another
nominee of such Depository or by the Depository or any nominee to
a successor Depository or any nominee of such successor.
The Depository has advised as follows: it is a limited-
purpose trust company created to hold securities for its
participating organizations and to facilitate the clearance and
settlement of securities transactions in such securities between
such participants through electronic book-entry changes in accounts
of its participants. Participants include securities brokers and
dealers, banks and trust companies, clearing corporations and
certain other organizations. Access to the Depository's system is
also available to others such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship
with a participant, either directly or indirectly. Persons who are
not participants may beneficially own securities held by the
Depository only through participants or indirect participants.
The specific terms of the depository arrangement with respect
to a series of Convertible Senior Debt Securities or Debt
Securities and certain limitations and restrictions relating to a
series of Bearer Securities in the form of one or more Global
Securities will be described in the Prospectus Supplement relating
to such series. Unless otherwise indicated in the applicable
Prospectus Supplement, the following provisions will apply to all
depository arrangements.
Upon the issuance of a Global Security, the Depository for
such Global Security or its nominee will credit, on its book-entry
registration and transfer system, the respective principal amounts
of the individual Convertible Senior Debt Securities or Debt
Securities represented by such Global Security to the accounts of
persons that have accounts with such Depository. Such accounts
will be designated by the underwriters or agents with respect to
such Convertible Senior Debt Securities or Debt Securities or by
the Company if such Convertible Senior Debt Securities or Debt
Securities are offered and sold directly by the Company. Ownership
of beneficial interests in such Global Security will be shown on,
and the transfer of that ownership will be effected only through,
records maintained by the applicable Depository or its nominee
(with respect to interests of participants) and the records of
participants (with respect to interests of persons other than
participants). The laws of some states may require that certain
purchasers of securities take physical delivery of such securities
in definitive form. Such limit and such laws may impair the
ability to transfer beneficial interests in a Global Security.
So long as the Depository for a Global Security, or its
nominee, is the registered owner of such Global Security, such
Depository or such nominee, as the case may be, will be considered
the sole owner or Holder of the Convertible Senior Debt Securities
or Debt Securities represented by such Global Security for all
purposes under the Indenture. Except as provided below, owners of
beneficial interests in a Global Security will not be entitled to
have any of the individual Convertible Senior Debt Securities or
Debt Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to
receive physical delivery of such Convertible Senior Debt
Securities or Debt Securities of such series in definitive form and
will not be considered the owners or Holders thereof under the
Indenture.
Payments of principal of, premium, if any, and interest, if
any, on individual Convertible Senior Debt Securities or Debt
Securities represented by a Global Security registered in the name
of a Depository or its nominee will be made to the Depository or
its nominee, as the case may be, as the registered owner of the
Global Security representing such Convertible Senior Debt
Securities or Debt Securities. Neither the Company, the Trustee,
any Paying Agent, nor the Security Registrar for such Convertible
Senior Debt Securities or Debt Securities will have any
responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of
the Global Security for such Convertible Senior Debt Securities or
Debt Securities or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Subject to certain restrictions relating to Bearer Securities,
the Company expects that the Depository for a series of Convertible
Senior Debt Securities or Debt Securities or its nominee, upon
receipt of any payment of principal, premium or interest in respect
of a permanent Global Security representing any of such Convertible
Senior Debt Securities or Debt Securities, will immediately credit
participants' accounts with payments in amounts proportionate to
their respective beneficial interests in the principal amount of
such Global Security for such Convertible Senior Debt Securities or
Debt Securities as shown on the records of such Depository or its
nominee. The Company also expects that payments by participants to
owners of beneficial interests in such Global Security held through
such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for
the accounts of customers in bearer form or registered in "street
name." Such payments will be the responsibility of such
participants. With respect to owners of beneficial interests in a
temporary Global Security representing Bearer Securities, receipt
by such beneficial owners of payments of principal, premium or
interest in respect thereof will be subject to additional
restrictions.
SAME-DAY SETTLEMENT AND PAYMENT
If provided in the Prospectus Supplement for a series of
Convertible Senior Debt Securities or Debt Securities, then
settlement for such Convertible Senior Debt Securities or Debt
Securities will be made by the agents or underwriters in
immediately available funds, and all payments of principal and
interest will be made by the Company in immediately available
funds.
Secondary trading in long-term notes and debentures of
corporate issuers is generally settled in clearinghouse or next-day
funds. In contrast, if provided in the Prospectus Supplement for
a series of Convertible Senior Debt Securities or Debt Securities,
such series of Convertible Senior Debt Securities or Debt
Securities will trade in the Depository's Same-Day Funds Settlement
System until maturity, and secondary market trading activity in
such series of Convertible Senior Debt Securities or Debt
Securities will therefore be required by the Depository to settle
in immediately available funds. No assurance can be given as to
the effect, if any, of settlement in immediately available funds on
trading of the Convertible Senior Debt Securities or Debt
Securities.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms
used in the covenants contained in the Indenture. Reference is
made to the Indenture for the full definition of all such terms as
well as any other capitalized terms used herein for which no
definition is provided.
"Subsidiary" means a corporation, partnership, joint venture,
association or other entity a majority of the outstanding voting
stock or other equity interest entitled ordinarily to vote in the
election of the directors or other governing body (however
designated) of which is owned or controlled, directly or
indirectly, by the Company or by one or more other Subsidiaries of
the Company . For the purposes of this definition, "voting
stock" means stock having voting power for the election of
directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.
"Significant Subsidiary" means (i) any Subsidiary (other than
Southern Credit Corporation or any of its Subsidiaries) which at
the time of determination had total assets which, as of the date of
the Company's most recent quarterly consolidated balance sheet,
constituted at least 10% of the Company's total assets on a
consolidated basis as of such date or (ii) any Subsidiary which at
the time of determination had revenues for the three-month period
ending on the date of the Company's most recent quarterly
consolidated statement of income which constituted at least 10% of
the Company's total revenues on a consolidated basis for such
period.
LIMITATION ON LIENS
In the Indenture, the Company covenants that it will not nor
will it permit any Significant Subsidiary to create, assume, incur
or suffer to exist any Lien upon any stock or indebtedness, whether
owned on the date of the Indenture or thereafter acquired, of any
Significant Subsidiary (other than a Significant Subsidiary, the
stock or indebtedness of which at the date of the Indenture was
subject to a Lien or required to be subject to a Lien) to secure
any Obligation (other than the Convertible Senior Debt Securities
or Debt Securities) of the Company, any Subsidiary or any other
Person without in any such case making effective provision whereby
all of the Outstanding Convertible Senior Debt Securities or Debt
Securities shall be directly secured equally and ratably with such
Obligation, excluding, however, from the operation of the foregoing
provisions any Lien upon stock or indebtedness of any corporation
existing at the time such corporation becomes a Significant
Subsidiary or existing or created upon stock or indebtedness of a
Significant Subsidiary at the time of acquisition of such stock or
indebtedness and any extension, renewal or replacement (or
successive extensions, renewals or replacements) in whole or in
part of any such Lien; provided, however, that the principal amount
of the Obligation secured thereby shall not exceed the principal
amount of the Obligation so secured at the time of such extension,
renewal or replacement; and provided, further, that such Lien shall
be limited to all or such part of the stock or indebtedness which
secured the Lien so extended, renewed or replaced. (Section 1006)
EVENTS OF DEFAULT
The Indenture provides, with respect to any series of
Convertible Senior Debt Securities or Debt Securities Outstanding
thereunder, that the following shall constitute Events of Default:
(i) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Convertible Senior Debt Security
or Debt Security of that series or of any coupon appertaining
thereto when the same becomes due and payable, continued for 30
days; (ii) default in the payment of the principal of or any
premium on any Convertible Senior Debt Security or Debt Security of
that series at its Maturity; (iii) default in the deposit of any
sinking fund payment when due by the terms of any Convertible
Senior Debt Security or Debt Security of that series; (iv) default
in the performance or breach of any covenant or warranty of the
Company in the Indenture with respect to any Convertible Senior
Debt Security or Debt Security of that series, continued for 60
days after written notice to the Company; (v) certain events in
bankruptcy, insolvency or reorganization; and (vi) any other Event
of Default provided with respect to Convertible Senior Debt
Securities or Debt Securities of that series. (Section 501) The
Company is required to file with the Trustee, annually, an
Officer's Certificate as to the Company's compliance with all
conditions and covenants under the Indenture. (Section 1004) The
Indenture provides that the Trustee may withhold notice to the
Holders of Convertible Senior Debt Securities or Debt Securities of
any default (except payment defaults on the Convertible Senior Debt
Securities or Debt Securities) in the event the Trustee considers
it in the interest of the Holders of Convertible Senior Debt
Securities or Debt Securities to do so. (Section 601)
If an Event of Default with respect to Convertible Senior Debt
Securities or Debt Securities of a particular series shall occur
and be continuing, the Trustee or the Holders of not less than 25%
in principal amount of Outstanding Convertible Senior Debt
Securities or Debt Securities of that series may declare the
Outstanding Convertible Senior Debt Securities or Debt Securities
of that series due and payable immediately. (Section 502)
Subject to the provisions relating to the duties of the
Trustee, in case an Event of Default with respect to Convertible
Senior Debt Securities or Debt Securities of a particular series
shall occur and be continuing, the Trustee shall be under no
obligation to exercise any of its rights or powers under the
Indenture at the request, order or direction of any of the Holders
of Convertible Senior Debt Securities or Debt Securities of such
series, unless such Holders shall have offered to the Trustee
reasonable indemnity and security against the costs, expenses and
liabilities that might be incurred by it in compliance with such
request. (Section 507 and TIA Section 315) Subject to such
provisions for the indemnification of the Trustee, the Holders of
a majority in principal amount of the Outstanding Convertible
Senior Debt Securities or Debt Securities of such series shall have
the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee under the
Indenture or exercising any trust or power conferred on the Trustee
with respect to the Convertible Senior Debt Securities or Debt
Securities of that series. (Section 512)
The Holders of not less than a majority in principal amount of
the Outstanding Convertible Senior Debt Securities or Debt
Securities of any series may on behalf of the Holders of all the
Convertible Senior Debt Securities or Debt Securities of such
series and any related coupons waive any past default under the
Indenture with respect to such series and its consequences, except
a default (i) in the payment of the principal of (or premium, if
any) or interest on or Additional Amounts payable in respect of any
Convertible Senior Debt Security or Debt Security of such series or
(ii) in respect of a covenant or provision that cannot be modified
or amended without the consent of the Holder of each Outstanding
Convertible Senior Debt Security of such series affected thereby.
(Section 513)
MERGER OR CONSOLIDATION
The Indenture provides that the Company may not consolidate
with or merge into any other corporation or convey or transfer its
properties and assets substantially as an entirety to any Person
unless either the Company is the continuing corporation or such
corporation or Person assumes by supplemental indenture all the
obligations of the Company under the Indenture and the Convertible
Senior Debt Securities or Debt Securities and immediately after the
transaction no default shall exist. (Section 801)
MODIFICATION OR WAIVER
Modification and amendment of the Indenture as it applies to
any series of Convertible Senior Debt Securities or Debt Securities
may be made by the Company and the Trustee with the consent of the
Holders of not less than a majority in principal amount of all
Outstanding Convertible Senior Debt Securities or Debt Securities
of such series; provided, that no such modification or amendment
may, without the consent of the Holder of each Outstanding
Convertible Senior Debt Security or Debt Security of such series
affected thereby, among other things: (i) change the Stated
Maturity of the principal of (or premium, if any, on) or any
installment of principal of or interest on any Convertible Senior
Debt Security or Debt Security, (ii) reduce the principal amount or
the rate of interest on or any Additional Amounts payable in
respect of or any premium payable upon the redemption of any
Convertible Senior Debt Security or Debt Security; (iii) change any
obligation of the Company to pay Additional Amounts in respect of
any Convertible Senior Debt Security or Debt Security; (iv) reduce
the amount of the principal of an original issue discount
Convertible Senior Debt Security or Debt Security that would be due
and payable upon a declaration of acceleration of the Maturity
thereof; (v) adversely affect any right of repayment at the option
of the Holder of any Convertible Senior Debt Security or Debt
Security; (vi) change the place or currency of payment of principal
of or any premium or interest on any Convertible Senior Debt
Security or Debt Security; (vii) impair the right to institute suit
for the enforcement of any such payment on or after the Stated
Maturity thereof or any Redemption Date or Repayment Date therefor;
(viii) reduce the percentage in principal amount of the Outstanding
Convertible Senior Debt Securities or Debt Securities necessary to
modify or amend the Indenture or to consent to any waiver
thereunder or reduce the requirements for voting or quorum; or (ix)
modify the foregoing requirements or reduce the percentage in
principal amount of the Outstanding Convertible Senior Debt
Securities or Debt Securities necessary to waive any past default.
(Section 902)
Modification and amendment of the Indenture may be made by the
Company and Trustee without the consent of any Holder for any of
the following purposes: (i) to evidence the succession of another
Person to the Company as obligor under the Indenture; (ii) to add
to the covenants of the Company for the benefit of the Holders of
all or any series of Convertible Senior Debt Securities or Debt
Securities; (iii) to add Events of Default for the benefit of the
Holders of all or any series of Convertible Senior Debt Securities
or Debt Securities; (iv) to add or change any provisions of the
Indenture to facilitate the issuance of Bearer Securities; (v) to
change or eliminate any provisions of the Indenture, provided, that
any such change or elimination shall become effective only when
there are no Convertible Senior Debt Securities or Debt Securities
Outstanding of any series created prior thereto that is entitled to
the benefit of such provision; (vi) to establish the form or terms
of Convertible Senior Debt Securities or Debt Securities of any
series and any related coupons; (vii) to provide for the acceptance
of appointment by a successor Trustee or facilitate the
administration of the trusts under the Indenture by more than one
Trustee; (viii) to close the Indenture with respect to the
authentication and delivery of additional series of Convertible
Senior Debt Securities or Debt Securities, to cure any ambiguity,
defect or inconsistency in the Indenture, provided, that such
action does not adversely affect the interests of Holders of
Convertible Senior Debt Securities or Debt Securities of any series
in any material respect; or (ix) to supplement any of the
provisions of the Indenture to the extent necessary to permit or
facilitate defeasance and discharge of any series of Convertible
Senior Debt Securities or Debt Securities, provided, that such
action shall not adversely affect the interests of the Holders of
any Convertible Senior Debt Securities or Debt Securities in any
material respect. (Section 901)
The Indenture contains provisions for convening meetings of
the Holders of Convertible Senior Debt Securities or Debt
Securities of a series of Convertible Senior Debt Securities or
Debt Securities if that series are issuable as Bearer Securities.
(Section 1501) A meeting may be called at any time by the Trustee
and, also, upon request, by the Company or the Holders of at least
10% in principal amount of the Outstanding Convertible Senior Debt
Securities or Debt Securities of such series, in any such case upon
notice given as provided in the Indenture. (Section 1502) Except
for any consent that must be given by the Holder of each
Convertible Senior Debt Security or Debt Security affected thereby,
as described above, any resolution presented at a meeting or
adjourned meeting at which a quorum is present may be adopted by
the affirmative vote of the Holders of a majority in principal
amount of the Outstanding Convertible Senior Debt Securities or
Debt Securities of that series; provided, that any resolution with
respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that may be made, given or taken by
the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Convertible Senior
Debt Securities or Debt Securities of that series may be adopted at
a meeting or adjourned meeting duly reconvened at which a quorum is
present by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Convertible
Senior Debt Securities or Debt Securities of that series. Any
resolution passed or decision taken at any meeting of Holders of
Convertible Senior Debt Securities or Debt Securities of any series
duly held in accordance with the Indenture will be binding on all
Holders of Convertible Senior Debt Securities or Debt Securities of
that series and the related coupons. The quorum at any meeting
called to adopt a resolution and at any reconvened meeting will be
the persons entitled to vote a majority in principal amount of the
Outstanding Convertible Senior Debt Securities or Debt Securities
of that series; provided, that if any action is to be taken at such
meeting with respect to a consent or waiver which may be given by
the Holders of not less than a specified percentage in principal
amount of the Outstanding Convertible Senior Debt Securities or
Debt Securities of a series, then the Persons entitled to vote such
specified percentage in principal amount of the Outstanding
Convertible Senior Debt Securities or Debt Securities of such
series will constitute a quorum. Notwithstanding the foregoing
provisions, if any action is to be taken at a meeting of Holders of
Convertible Senior Debt Securities or Debt Securities of any series
with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that the Indenture
expressly provides may be made, given or taken by the Holders of a
specified percentage in principal amount of all Outstanding
Convertible Senior Debt Securities or Debt Securities affected
thereby, or of the Holders of such series and one or more
additional series, then (i) there shall be no minimum quorum
requirement for such meeting and (ii) the principal amount of the
Outstanding Convertible Senior Debt Securities or Debt Securities
of such series that are voted in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action
shall determine whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made,
given or taken under the Indenture. (Section 1504)
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides that, unless the provisions of Article
Fourteen are made inapplicable to the Convertible Senior Debt
Securities or Debt Securities of or within any series and any
related coupons pursuant to Section 301 of the Indenture, then the
Company may elect either (i) to defease and be discharged from any
and all obligations with respect to such Convertible Senior Debt
Securities or Debt Securities and any related coupons (except for
the obligation to pay Additional Amounts, if any, upon the
occurrence of certain events of tax, assessment or governmental
charge with respect to payments on such Convertible Senior Debt
Securities or Debt Securities and the obligations to register the
transfer or exchange of such Convertible Senior Debt Securities or
Debt Securities and any related coupons, to replace temporary or
mutilated, destroyed, lost or stolen Convertible Senior Debt
Securities or Debt Securities and any related coupons, to maintain
an office or agency in respect of such Convertible Senior Debt
Securities or Debt Securities and any related coupons and to hold
moneys for payment in trust) ("defeasance") (Section 1402) or (ii)
to be released from its obligations with respect to such
Convertible Senior Debt Securities or Debt Securities and any
related coupons under Section 1006 (being the restriction described
under "Limitation on Liens") or, if provided pursuant to Section
301 of the Indenture, then its obligations with respect to any
other covenant, and any omission to comply with such obligations
shall not constitute a default or an Event of Default with respect
to such Convertible Senior Debt Securities or Debt Securities and
any related coupons ("covenant defeasance") (Section 1403), in
either case upon the irrevocable deposit by the Company with the
Trustee (or other qualifying trustee), in trust, of an amount, in
such Currency in which such Convertible Senior Debt Securities or
Debt Securities and any related coupons are then specified as
payable at Stated Maturity, or Government Obligations (as defined
below), or both, applicable to such Convertible Senior Debt
Securities or Debt Securities and any related coupons (with such
applicability being determined on the basis of the Currency in
which such Convertible Senior Debt Securities or Debt Securities
are then specified as payable at Stated Maturity) that through the
scheduled payment of principal and interest in accordance with
their terms will provide money in an amount sufficient to pay the
principal of (and premium, if any) and interest, if any, on such
Convertible Senior Debt Securities or Debt Securities and any
related coupons, and any mandatory sinking fund or analogous
payments thereon, on the scheduled due dates therefor.
Such a trust may only be established if, among other things,
the Company has delivered to the Trustee an Opinion of Counsel (as
specified in the Indenture) to the effect that the Holders of such
Convertible Senior Debt Securities or Debt Securities and any
related coupons will not recognize income, gain or loss for United
States federal income tax purposes as a result of such defeasance
or covenant defeasance and will be subject to United States federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance or covenant
defeasance had not occurred, and such Opinion of Counsel, in the
case of defeasance under clause (i) above, must refer to and be
based upon a ruling of the Internal Revenue Service or a change in
applicable United States federal income tax law occurring after the
date of the Indenture. (Section 1404)
"Government Obligations" means securities that are (i) direct
obligations of the United States of America or the government that
issued the Foreign Currency in which the Convertible Senior Debt
Securities or Debt Securities of a particular series are payable
for the payment of which its full faith and credit is pledged or
(ii) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America or
such government that issued the Foreign Currency in which the
Convertible Senior Debt Securities or Debt Securities of such
series are payable, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United
States of America or such other government, which, in either case,
are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of any
such Government Obligation held by such custodian for the account
of the holder of a depository receipt, provided, that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or
principal of the Government Obligation evidenced by such depository
receipt. (Section 101)
Unless otherwise provided in the Prospectus Supplement, if,
after the Company has deposited funds or Government Obligations to
effect defeasance or covenant defeasance with respect to
Convertible Senior Debt Securities or Debt Securities of any
series, (i) the Holder of a Convertible Senior Debt Security or
Debt Security of such series is entitled to, and does, elect
pursuant to the terms of such Convertible Senior Debt Security or
Debt Security to receive payment in a Currency other than that in
which such deposit has been made in respect of such Convertible
Senior Debt Security or Debt Security or (ii) the Currency in which
such deposit has been made in respect of any Convertible Senior
Debt Security or Debt Security of such series ceases to be used by
its government of issuance, then the indebtedness represented by
such Convertible Senior Debt Security or Debt Security shall be
deemed to have been, and will be, fully discharged and satisfied
through the payment of the principal of (and premium, if any) and
interest, if any, on such Convertible Senior Debt Security or Debt
Security as they become due out of the proceeds yielded by
converting the amount so deposited in respect of such Convertible
Senior Debt Security or Debt Security into the Currency in which
such Convertible Senior Debt Security or Debt Security becomes
payable as a result of such election or such cessation of usage
based on the applicable Market Exchange Rate. (Section 1405)
Unless otherwise provided in the Prospectus Supplement, all
payments of principal of (and premium, if any) and interest, if
any, and Additional Amounts, if any, on any Convertible Senior Debt
Security or Debt Security that is payable in a Foreign Currency
that ceases to be used by its government of issuance shall be made
in U.S. dollars. (Section 312)
In the event the Company effects covenant defeasance with
respect to any Convertible Senior Debt Securities or Debt
Securities and any related coupons and such Convertible Senior Debt
Securities or Debt Securities and any related coupons are declared
due and payable because of the occurrence of any Event of Default
other than the Event of Default described in clause (iv) or (vi)
under "Events of Default" with respect to any covenant with respect
to which there has been defeasance, the Currency and Government
Obligations on deposit with the Trustee will be sufficient to pay
amounts due on such Convertible Senior Debt Securities or Debt
Securities and any related coupons at the time of their Stated
Maturity but may not be sufficient to pay amounts due on such
Convertible Senior Debt Securities or Debt Securities and any
related coupons at the time of the acceleration resulting from such
Event of Default. However, the Company would remain liable to make
payment of such amounts due at the time of acceleration.
The Prospectus Supplement may further describe the provisions,
if any, permitting such defeasance or covenant defeasance,
including any modifications to the provisions described above, with
respect to the Convertible Senior Debt Securities or Debt
Securities of or within a particular series and any related
coupons.
RESIGNATION OF TRUSTEE
The Trustee may resign or be removed with respect to one or
more series of Convertible Senior Debt Securities or Debt
Securities and a successor Trustee may be appointed to act with
respect to such series. (Section 608) In the event that two or
more persons are acting as Trustee with respect to different series
of Convertible Senior Debt Securities or Debt Securities, each such
Trustee shall be a Trustee of a trust under the Indenture separate
and apart from the trust administered by any other such Trustee
(Section 609), and any action described herein to be taken by the
"Trustee" may then be taken by each such Trustee with respect to,
and only with respect to, the one or more series of Indenture
Securities for which it is Trustee.
THE TRUSTEE
The Company may from time to time maintain bank accounts and
have other customary banking relationships with and obtain credit
facilities and lines of credit from the Trustee in the ordinary
course of business. The Trustee may also serve as trustee under
other indentures covering other debt securities of the Company.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus
Supplement, payment of principal of and any premium, interest or
Additional Amounts on Registered Securities issued in certificated
form will be made at any office or agency to be maintained by the
Company in New York City, New York, except that, at the option of
the Company, payment of any interest (including Additional Amounts,
if any) may be made (i) by check mailed to the address of the
person entitled thereto as such address shall appear in the
applicable Security Register or (ii) by wire transfer to an account
maintained by the payee located inside the United States.
(Sections 307, 1001 and 1002) In the case of Global Securities,
such payment will be made to the Depository or its nominee in
accordance with the then-existing arrangements between the Paying
Agent and the Depository. See "Description of Convertible Senior
Debt Securities and Debt Securities--Global Securities" above.
Unless otherwise indicated in an applicable Prospectus Supplement,
payment of any installment of interest on Registered Securities
will be made to the person in whose name such Registered Security
is registered at the close of business on the Regular Record Date
for such payment. (Section 307)
Unless otherwise indicated in an applicable Prospectus
Supplement, payment of principal of and any premium, interest or
Additional Amounts on Bearer Securities will be payable, subject to
any applicable laws and regulations, at the offices of such Paying
Agents outside the United States as the Company may designate from
time to time. (Section 1002) Unless otherwise indicated in an
applicable Prospectus Supplement, payment of interest and certain
Additional Amounts on Bearer Securities on any Interest Payment
Date will be made only against surrender of the coupon relating to
the applicable Interest Payment Date. (Section 1001) Unless
otherwise provided in an applicable Prospectus Supplement, no
payment with respect to any Bearer Security will be made at any
office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an
account maintained with a bank located in the United States.
Notwithstanding the foregoing, payments of principal, premium, if
any, and interest, if any, and Additional Amounts, if any, in
respect of Bearer Securities payable in U.S. dollars will be made
at the office of the Company's Paying Agent in New York City, New
York, if (but only if) payment of the full amount thereof in U.S.
dollars at all offices or agencies located outside the United
States is illegal or effectively precluded by exchange controls or
other similar restrictions. (Section 1002)
Any Paying Agents located outside the United States and any
other Paying Agents in the United States initially designated by
the Company for the Convertible Senior Debt Securities or Debt
Securities will be named in the Prospectus Supplement. The Company
may at any time designate additional Paying Agents or rescind the
designation of any Paying Agent or approve a change in the office
through which any Paying Agent acts, except that, if Convertible
Senior Debt Securities or Debt Securities of a series are issuable
only as Registered Securities, then the Company will be required to
maintain a Paying Agent in each Place of Payment for such series
and, if Convertible Senior Debt Securities or Debt Securities of a
series are also issuable as Bearer Securities, then the Company
will be required to maintain (i) a Paying Agent in New York City,
New York, for payments with respect to any Registered Securities of
the series (and for payments with respect to Bearer Securities of
the series in the circumstances described above, but not otherwise)
and (ii) a Paying Agent in a Place of Payment located outside the
United States where Convertible Senior Debt Securities or Debt
Securities of such series and any coupons appertaining thereto may
be presented and surrendered for payment; provided, that if the
Convertible Senior Debt Securities or Debt Securities of such
series are listed on any stock exchange located outside the United
States and such stock exchange shall so require, then the Company
will maintain a Paying Agent in any other required city located
outside the United States, as the case may be, for the Convertible
Senior Debt Securities or Debt Securities of such series. (Section
1002).
DESCRIPTION OF CONVERTIBLE SUBORDINATED DEBT SECURITIES
The Convertible Subordinated Debt Securities are to be issued
under an indenture (the "Indenture") between the Company and a
trustee (the " Subordinated Trustee"), as shall be set forth
in the Prospectus Supplement relating to the Convertible
Subordinated Debt Securities being offered thereby. The statements
made under this heading relating to the Convertible Subordinated
Debt Securities and the Indenture are summaries of the provisions
thereof and do not purport to be complete, and, where reference is
made to particular provisions of the Indenture, such provisions are
incorporated by reference as a part of such summaries, which are
qualified in their entirety by such references. Parenthetical
references below are to the Indenture or to sections of the TIA,
certain provisions of which govern the terms of the Indenture, and,
whenever any particular provision of the Indenture or the TIA or
any defined term used therein is referred to, such provision or
defined term is incorporated by reference as a part of the
statement in connection with which such reference is made, and the
statement in connection with which such reference is made is
qualified in its entirety by such reference. Capitalized terms
used herein but not otherwise defined shall have the meaning
assigned to them in the Indenture.
GENERAL
The Convertible Subordinated Debt Securities will be direct,
unsecured obligations of the Company. At December 31,
1994 , the Company had no secured indebtedness outstanding. The
Company's assets consist of the stock of its subsidiaries and
interests in unconsolidated affiliates. Accordingly, certain
creditors of the Company's subsidiaries will have a claim on the
assets of such subsidiaries prior to the Holders of the Convertible
Subordinated Debt Securities. At December 31, 1994 ,
the Company's subsidiaries had an aggregate of
$ 255.3 million of indebtedness outstanding, of which
$ 183.0 million was secured. In addition, the ability
of the Company to pay principal of, premium, if any, and interest
on the Convertible Subordinated Debt Securities will depend on the
Company's receipt of funds from its subsidiaries and unconsolidated
affiliates. KCSR, DST, Janus and Berger are not
subject to any restrictions on the payment of dividends.
The Convertible Subordinated Debt Securities may be issued in
one or more series. The particular terms of each series of
Convertible Subordinated Debt Securities, as well as any
modifications of or additions to the general terms of the
Convertible Subordinated Debt Securities as described herein that
may be applicable in the case of a particular series of Convertible
Subordinated Debt Securities, will be described in the Prospectus
Supplement relating to such series of Convertible Subordinated Debt
Securities. Accordingly, for a description of the terms of a
particular series of Convertible Subordinated Debt Securities,
reference must be made to both the Prospectus Supplement relating
thereto and the description of Convertible Subordinated Debt
Securities set forth in this Prospectus.
Reference is made to the Prospectus Supplement for the
following terms of the Convertible Subordinated Debt Securities
being offered thereby: (1) the title of such Convertible
Subordinated Debt Securities; (2) any limit on the aggregate
principal amount of such Convertible Subordinated Debt Securities;
(3) the percentage of the principal amount at which such
Convertible Subordinated Debt Securities will be issued and, if
other than the principal amount thereof, the portion of the
principal amount thereof payable upon declaration of acceleration
of the maturity thereof or the method by which such portion shall
be determined; (4) the date or dates, or the method by which such
date or dates will be determined or extended, on which the
principal of such Convertible Subordinated Debt Securities will be
payable; (5) the rate or rates at which such Convertible
Subordinated Debt Securities will bear interest, if any, or the
method by which such rate or rates shall be determined; (6) the
date or dates from which interest, if any, on such Convertible
Subordinated Debt Securities shall accrue or the method by which
such date or dates shall be determined, the dates on which such
interest, if any, will be payable and the Regular Record Date, if
any, for the interest payable on any Registered Security of the
series on any Interest Payment Date, or the method by which any
such date shall be determined, and the basis on which interest
shall be calculated if other than on the basis of a 360-day year of
twelve 30-day months; (7) the period or periods within which, the
price or prices at which, the Currency in which and the other terms
and conditions upon which such Convertible Subordinated Debt
Securities may be redeemed in whole or in part, at the option of
the Company; (8) the obligation, if any, of the Company to redeem,
repay or purchase such Convertible Subordinated Debt Securities
pursuant to any sinking fund or analogous provision or at the
option of a Holder thereof and the period or periods within which
or the date or dates on which, the price or prices at which, the
Currency in which and the other terms and conditions upon which
such Convertible Subordinated Debt Securities shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such
obligation; (9) whether such Convertible Subordinated Debt
Securities are to be issuable as Registered Securities or Bearer
Securities or both, and whether such Convertible
Subordinated Debt Securities are to be issuable, either
temporarily or permanently, in global form and, if so, whether
beneficial owners of interests in any such permanent global
security may exchange such interests for Convertible Subordinated
Debt Securities of such series and of like tenor of any authorized
form and denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in the
Indenture, and, if Registered Securities of the series are to be
issuable as a global security, the identity of the depository for
such series; (10) if other than U.S. dollars, the Currency in which
such Convertible Subordinated Debt Securities will be denominated
and in which the principal of (and premium, if any) and any
interest on such Convertible Subordinated Debt Securities will be
payable; (11) whether the amount of payments of principal of (and
premium, if any) or interest, if any, on such Convertible
Subordinated Debt Securities may be determined with reference to
an index, formula or other method (which index, formula or method
may be based on one or more Currencies, commodities, equity indices
or other indices) and the manner in which such amounts shall be
determined; (12) whether the Company or Holder may elect payment of
the principal of (and premium, if any) or interest, if any, on such
Convertible Subordinated Debt Securities in one or more Currencies
other than that in which such Convertible Subordinated Debt
Securities are denominated or stated to be payable, the period or
periods within which, and the terms and conditions upon which, such
election may be made, and the time and manner of determining the
exchange rate between the Currency in which such Convertible
Subordinated Debt Securities are denominated or stated to be
payable and the Currency in which such Convertible Subordinated
Debt Securities are to be so payable; (13) the place or places, if
any, other than or in addition to New York City, New York, where
the principal of (and premium, if any) and any interest on such
Convertible Subordinated Debt Securities shall be payable, any
Registered Securities of the series may be surrendered for
registration of transfer, such Convertible Subordinated Debt
Securities may be surrendered for exchange and notice or demands to
or upon the Company in respect of such Convertible Subordinated
Debt Securities and the Indenture may be served; (14) if other than
denominations of $1,000 and any integral multiple thereof, the
denominations in which any Registered Securities of the series
shall be issuable and, if other than the denomination of $5,000,
the denomination or denominations in which any Bearer Securities of
the series shall be issuable; (15) the identity of the
Subordinated Trustee for such Convertible Subordinated Debt
Securities and, if other than the Subordinated Trustee, the
Security Registrar and the Paying Agent; (16) the inapplicability
to such Convertible Subordinated Debt Securities of the provisions
of Article Fourteen of the Indenture described herein under
"Defeasance and Covenant Defeasance" and any provisions in
modification of, in addition to or in lieu of any of the provisions
of such Article; (17) the Person to whom any interest on any
Registered Security of the series shall be payable, if other than
the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest, the manner in which, or the Person
to whom, any interest on any Bearer Security of the series shall be
payable, if otherwise than upon presentation and surrender of the
coupons appertaining thereto as they severally mature, and the
extent to which, or the manner in which, any interest payable on a
temporary global security on an Interest Payment Date will be paid
if other than in the manner provided in the Indenture; (18) whether
and under what circumstances the Company will pay Additional
Amounts as contemplated by Section 1005 of the Indenture on such
Convertible Subordinated Debt Securities to any Holder who is not
a United States person (including any modification to the
definition of such terms as contained in the Indenture as
originally executed) in respect of any tax, assessment or
governmental charge and, if so, whether the Company will have the
option to redeem such Convertible Subordinated Debt Securities
rather than pay such Additional Amounts (and the terms of any such
option); (19) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company with respect to
such Convertible Subordinated Debt Securities, whether or not such
Events of Default or covenants are consistent with the Events of
Default or covenants set forth herein; (20) the date as of which
any Bearer Securities of the series and any temporary global
security shall be dated if other than the date of original issuance
of the first of such Convertible Subordinated Debt Securities; (21)
if such Convertible Subordinated Debt Securities are to be
issuable in definitive form (whether upon original issue or upon
exchange of a temporary security of such series) only upon receipt
of certain certificates or other documents or satisfaction of other
conditions, then the form or terms of such certificates, documents
or conditions; (22) the designation of the initial Exchange Rate
Agent, if any; (23) any other terms of such Convertible
Subordinated Debt Securities; and (24) in the case of Convertible
Subordinated Debt Securities, the terms and conditions upon which
conversion will be effected, including the conversion price, the
conversion period and other conversion provisions in addition to or
in lieu of those described below.
The Indenture does not contain any provisions that may afford
the Holders of Convertible Subordinated Debt Securities of any
series protection in the event of a highly leveraged transaction or
other transaction that may occur in connection with a change of
control of the Company. Payment of any indebtedness outstanding
under the Company's revolving credit agreement, and under the ESOP
secured term loan agreements of the Company, would become
accelerated at the time of any change in control of the Company, as
defined in those agreements. At December 31, 1994 ,
the amount outstanding under these credit and loan agreements
aggregated approximately $ 332.2 million. The Company
is a party to an agreement with the minority owners of Janus, and
DST is a party to agreements with its joint venture partners,
which may impose financial and other obligations upon the
Company and DST, respectively, in the event of a change in control
of the Company, as defined in such agreements. The Company also
has a commitment to fund, through so-called "rabbi trusts", the
payment of certain compensation and benefit continuations and
severance payments of management employees in the event of defined
changes in control. The aggregate amount of the Company's
financial obligations under the agreements governing the rabbi
trusts and the Company's investment in Janus and DST's joint
venture partners, cannot be determined in advance of any
change-in-control event, but is expected to be material.
The Indenture provides that the Convertible Subordinated Debt
Securities may be issued in one or more series thereunder, in each
case as authorized from time to time by the Board of Directors of
the Company. (Section 301) The Indenture also provides that there
may be more than one Subordinated Trustee under the
Indenture, each with respect to one or more different series of
Convertible Subordinated Debt Securities. See "Resignation of
Subordinated Trustee" herein. At a time when two or more
Subordinated Trustees are acting, each with respect to only
certain series, the term "Convertible Subordinated Debt Securities"
as used herein shall mean the one or more series with respect to
which each respective Subordinated Trustee is acting. In
the event there is more than one Subordinated Trustee under
the Indenture, the powers and trust obligations of each
Subordinated Trustee as described herein shall extend only
to the one or more series of Convertible Subordinated Debt
Securities for which it is Subordinated Trustee. If more
than one Subordinated Trustee is acting under the Indenture,
then the Convertible Subordinated Debt Securities (whether of one
or more than one series) for which each Subordinated Trustee
is acting shall in effect be treated as if issued under separate
indentures.
Some of the Convertible Subordinated Debt Securities may be
issued as original issue discount Securities (bearing no interest
or interest at a rate which at the time of issuance is below market
rates) ("Original Issue Discount Securities"), to be sold at a
substantial discount below their stated principal amount. If any
Convertible Subordinated Debt Security is not to be denominated in
United States dollars, certain provisions with respect thereto will
be set forth in a Foreign Currency Prospectus Supplement, which
will specify the Currency or Currencies, including composite
Currencies such as the European Currency Unit, in which the
principal, premium, if any, and any interest with respect to such
Convertible Subordinated Debt Security are to be paid, along with
any other terms relating to the non-United States dollar
denomination. Federal income tax, accounting and other special
considerations applicable to any such Original Issue Discount
Securities or non-United States dollar denominated Convertible
Subordinated Debt Securities will be described in a Prospectus
Supplement relating thereto.
The Indenture does not contain any provisions that would limit
the ability of the Company to incur indebtedness. Reference is
made to the Prospectus Supplement related to the series of
Convertible Subordinated Debt Securities offered thereby for
information with respect to any deletions from, modifications of or
additions to the Events of Default or covenants of the Company
applicable to such Convertible Subordinated Debt Securities that
are described herein.
Under the Indenture, the Company will have the ability, in
addition to the ability to issue Convertible Subordinated Debt
Securities with terms different from those of Convertible
Subordinated Debt Securities previously issued, without the
consent of the Holders, to reopen a previous issue of a series of
Convertible Subordinated Debt Securities and issue additional
Convertible Subordinated Debt Securities of such series, in an
aggregate principal amount determined by the Company. (Section
301)
DENOMINATIONS, REGISTRATION AND TRANSFER
Convertible Subordinated Debt Securities of a series may be
issuable solely as Registered Securities, solely as Bearer
Securities or as both Registered Securities and Bearer Securities.
Registered Securities will be issuable in denominations of $1,000
and integral multiples of $1,000 and Bearer Securities will be
issuable in the denomination of $5,000 or, in each case, in such
other denominations as may be in the terms of the Convertible
Subordinated Debt Securities of any particular series. The
Indenture also provides that Convertible Subordinated Debt
Securities of a series may be issuable in global form. Unless
otherwise indicated in the Prospectus Supplement, Bearer Securities
will have interest coupons attached. (Section 201)
Registered Securities of any series will be exchangeable for
other Registered Securities of the same series and of a like
aggregate principal amount and tenor of different authorized
denominations. If (but only if) provided in the Prospectus
Supplement, Bearer Securities (with all unmatured coupons, except
as provided below, and all matured coupons in default) of any
series may be exchanged for Registered Securities of the same
series of any authorized denominations and of a like aggregate
principal amount and tenor. In such event, Bearer Securities
surrendered in a permitted exchange for Registered Securities
between a Regular Record Date or a Special Record Date and the
relevant date for payment of interest shall be surrendered without
the coupon relating to such date for payment of interest, and
interest will not be payable on such date for payment of interest
in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such
coupon when due in accordance with the terms of the Indenture.
Unless otherwise specified in the Prospectus Supplement, Bearer
Securities will not be issued in exchange for Registered
Securities. (Section 305)
The Convertible Subordinated Debt Securities may be presented
for exchange as described above, and Registered Securities may be
presented for registration of transfer (duly endorsed or
accompanied by a written instrument of transfer), at the corporate
trust office of the Subordinated Trustee in New York City,
New York, or at the office of any transfer agent designated by the
Company for such purpose with respect to any series of Convertible
Subordinated Debt Securities and referred to in the Prospectus
Supplement. No service charge will be made for any transfer or
exchange of Convertible Subordinated Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
(Section 305) If a Prospectus Supplement refers to any transfer
agent (in addition to the Subordinated Trustee) initially
designated by the Company with respect to any series of Convertible
Subordinated Debt Securities, then the Company may at any time
rescind the designation of any such transfer agent or approve a
change in the location through which any such transfer agent acts,
except that, if Convertible Subordinated Debt Securities of a
series are issuable solely as Registered Securities, then the
Company will be required to maintain a transfer agent in each Place
of Payment for such series and, if Convertible Subordinated Debt
Securities of a series may be issuable both as Registered
Securities and as Bearer Securities, then the Company will be
required to maintain (in addition to the Subordinated
Trustee) a transfer agent in a Place of Payment for such series
located outside the United States. The Company may at any time
designate additional transfer agents with respect to any series of
Convertible Subordinated Debt Securities. (Section 1002)
The Company shall not be required to (i) issue, register the
transfer of or exchange Convertible Subordinated Debt Securities
of any series during a period beginning at the opening of business
15 days before any selection of Convertible Subordinated Debt
Securities of that series to be redeemed and ending at the close of
business on (A) if Convertible Subordinated Debt Securities of the
series are issuable only as Registered Securities, then the day of
mailing of the relevant notice of redemption and (B) if Convertible
Subordinated Debt Securities of the series are issuable as Bearer
Securities, then the day of the first publication of the relevant
notice of redemption or, if Convertible Subordinated Debt
Securities of the series are also issuable as Registered
Securities and there is no publication, then the mailing of the
relevant notice of redemption; (ii) register the transfer of or
exchange any Registered Security or portion thereof called for
redemption, except the unredeemed portion of any Registered
Security being redeemed in part; (iii) exchange any Bearer Security
selected for redemption, except to exchange such Bearer Security
for a Registered Security of that series and of like tenor that is
simultaneously surrendered for redemption; or (iv) issue, register
the transfer of or exchange any Convertible Subordinated Debt
Security that has been surrendered for repayment at the option of
the Holder, except the portion, if any, thereof not to be so
repaid. (Section 305)
CONVERSION RIGHTS
The circumstances under which Convertible Subordinated Debt
Securities of any series are convertible into Common Stock and the
terms of such conversion will be set forth in the Prospectus
Supplement relating thereto. Such terms shall include provisions
as to whether conversion is mandatory, at the option of the Holder,
or at the option of the Company, and may include provisions in
which the number of shares of Common Stock to be received by the
Holder of Convertible Subordinated Debt Securities would be
calculated according to the market price of Common Stock as of a
time stated in the Prospectus Supplement.
SUBORDINATION OF CONVERTIBLE SUBORDINATED DEBT SECURITIES
The obligation of the Company to make payment on account of
the principal of, and premium, if any, and interest on the
Convertible Subordinated Debt Securities will be subordinated and
junior in right of payment, as set forth in the Indenture, to the
prior payment in full of all Senior Debt.
"Senior Debt" means the principal of (and premium, if any) and
interest on any indebtedness, whether outstanding at the date
hereof or hereafter created or incurred which is for (a) money
borrowed by the Company (including without limitation obligations
of the Company in respect of overdrafts, foreign exchange
contracts, letters of credit, bankers' acceptances, or any loan or
advance from a bank, whether or not evidenced by debentures, notes
or similar instruments), (b) obligations which would be classified
as liabilities on the balance sheet of the Company, in accordance
with generally accepted accounting principles, evidencing the
purchase price for the acquisition of assets of any kind by the
Company or a Subsidiary except in the ordinary course of business,
(c) money borrowed by others and assumed or guaranteed by the
Company, (d) obligations of the Company under any agreement or
lease of any real or personal property which are capitalized on the
books of the Company in accordance with generally accepted
accounting principles, (e) obligations under performance
guarantees, supporting agreements and other agreements relating to
the obligations of any Subsidiary of the Company and (f) renewals,
extensions, refundings, amendments and modifications of any
indebtedness of the kind described in the foregoing clauses (a),
(b), (c), (d) and (e) or of the instruments creating or evidencing
such indebtedness, unless, in each case, by the terms of the
instrument creating or evidencing such indebtedness or such
renewal, extension, refunding, amendment and modification, it is
provided that such indebtedness, or such indebtedness as so
modified or amended, or such renewals, extensions or refundings are
not senior in right to payment to the Convertible Subordinated Debt
Securities.
Upon any distribution of the assets of the Company upon any
dissolution, total or partial liquidation or reorganization of or
similarly proceeding relating to the Company, the Holders of Senior
Debt will be entitled to receive payment in full before the Holders
of the Convertible Subordinated Debt Securities are entitled to
receive any payment. Upon the Event of Default (as described
below) with respect to the Convertible Subordinated Debt
Securities, the Subordinated Trustee or Holders of the
Convertible Subordinated Debt Securities must give notice of such
Event of Default and the intention to accelerate to the Company and
any Holders of Senior Debt which have theretofore requested such
notice, and such acceleration shall not become effective unless and
until such Event of Default is continuing on the sixtieth day after
the date of delivery of such notice of intention to accelerate;
PROVIDED, HOWEVER, that the Convertible Subordinated Debt
Securities shall become immediately due and payable upon notice in
the event of a bankruptcy or insolvency of the Company. By reason
of such subordination, in the event of insolvency, creditors of the
Company who are holders of Senior Debt or of other unsubordinated
Debt of the Company may recover more, ratably, than the Holders of
the Convertible Subordinated Debt Securities.
GLOBAL SECURITIES
The Convertible Subordinated Debt Securities of a series may
be issued in whole or in part in the form of one or more global
securities (each a "Global Security") that will be deposited with,
or on behalf of, the "Depository" identified in the Prospectus
Supplement relating to such series. Unless and until it is
exchanged in whole or in part for the individual Convertible
Subordinated Debt Securities represented thereby, a Global
Security may not be transferred except as a whole by the Depository
for such Global Security to a nominee of such Depository or by a
nominee of such Depository to such Depository or another nominee of
such Depository or by the Depository or any nominee to a successor
Depository or any nominee of such successor.
The Depository has advised as follows: it is a limited-
purpose trust company created to hold securities for its
participating organizations and to facilitate the clearance and
settlement of securities transactions in such securities between
such participants through electronic book-entry changes in accounts
of its participants. Participants include securities brokers and
dealers, banks and trust companies, clearing corporations and
certain other organizations. Access to the Depository's system is
also available to others such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship
with a participant, either directly or indirectly. Persons who are
not participants may beneficially own securities held by the
Depository only through participants or indirect participants.
The specific terms of the depository arrangement with respect
to a series of Convertible Subordinated Debt Securities and
certain limitations and restrictions relating to a series of Bearer
Securities in the form of one or more Global Securities will be
described in the Prospectus Supplement relating to such series.
Unless otherwise indicated in the applicable Prospectus Supplement,
the following provisions will apply to all depository arrangements.
Upon the issuance of a Global Security, the Depository for
such Global Security or its nominee will credit, on its book-entry
registration and transfer system, the respective principal amounts
of the individual Convertible Subordinated Debt Securities
represented by such Global Security to the accounts of persons that
have accounts with such Depository. Such accounts will be
designated by the underwriters or agents with respect to such
Convertible Subordinated Debt Securities or by the Company if such
Convertible Subordinated Debt Securities are offered and sold
directly by the Company. Ownership of beneficial interests in such
Global Security will be shown on, and the transfer of that
ownership will be effected only through, records maintained by the
applicable Depository or its nominee (with respect to interests of
participants) and the records of participants (with respect to
interests of persons other than participants). The laws of some
states may require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such
limit and such laws may impair the ability to transfer beneficial
interests in a Global Security.
So long as the Depository for a Global Security, or its
nominee, is the registered owner of such Global Security, such
Depository or such nominee, as the case may be, will be considered
the sole owner or Holder of the Convertible Subordinated Debt
Securities represented by such Global Security for all purposes
under the Indenture. Except as provided below, owners of
beneficial interests in a Global Security will not be entitled to
have any of the individual Convertible Subordinated Debt Securities
of the series represented by such Global Security registered in
their names, will not receive or be entitled to receive physical
delivery of such Convertible Subordinated Debt Securities of such
series in definitive form and will not be considered the owners or
Holders thereof under the Indenture.
Payments of principal of, premium, if any, and interest, if
any, on individual Convertible Subordinated Debt Securities
represented by a Global Security registered in the name of a
Depository or its nominee will be made to the Depository or its
nominee, as the case may be, as the registered owner of the Global
Security representing such Convertible Subordinated Debt
Securities. Neither the Company, the Subordinated Trustee,
any Paying Agent, nor the Security Registrar for such Convertible
Subordinated Debt Securities will have any responsibility or
liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests of the Global
Security for such Convertible Subordinated Debt Securities or for
maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Subject to certain restrictions relating to Bearer Securities,
the Company expects that the Depository for a series of Convertible
Subordinated Debt Securities or its nominee, upon receipt of any
payment of principal, premium or interest in respect of a permanent
Global Security representing any of such Convertible Subordinated
Debt Securities, will immediately credit participants' accounts
with payments in amounts proportionate to their respective
beneficial interests in the principal amount of such Global
Security for such Convertible Subordinated Debt Securities as shown
on the records of such Depository or its nominee. The Company also
expects that payments by participants to owners of beneficial
interests in such Global Security held through such participants
will be governed by standing instructions and customary practices,
as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name." Such
payments will be the responsibility of such participants. With
respect to owners of beneficial interests in a temporary Global
Security representing Bearer Securities, receipt by such beneficial
owners of payments of principal, premium or interest in respect
thereof will be subject to additional restrictions.
SAME-DAY SETTLEMENT AND PAYMENT
If provided in the Prospectus Supplement for a series of
Convertible Subordinated Debt Securities, then settlement for such
Convertible Subordinated Debt Securities will be made by the
agents or underwriters in immediately available funds, and all
payments of principal and interest will be made by the Company in
immediately available funds.
Secondary trading in long-term notes and debentures of
corporate issuers is generally settled in clearinghouse or next-day
funds. In contrast, if provided in the Prospectus Supplement for
a series of Convertible Subordinated Debt Securities, such series
of Convertible Subordinated Debt Securities will trade in the
Depository's Same-Day Funds Settlement System until maturity, and
secondary market trading activity in such series of Convertible
Subordinated Debt Securities will therefore be required by the
Depository to settle in immediately available funds. No assurance
can be given as to the effect, if any, of settlement in immediately
available funds on trading of the Convertible Subordinated Debt
Securities.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms
used in the covenants contained in the Indenture. Reference is
made to the Indenture for the full definition of all such terms as
well as any other capitalized terms used herein for which no
definition is provided.
"Subsidiary" means a corporation, partnership, joint venture,
association or other entity a majority of the outstanding voting
stock or other equity interest entitled ordinarily to vote in the
election of the directors or other governing body (however
designated) of which is owned or controlled, directly or
indirectly, by the Company or by one or more other Subsidiaries of
the Company . For the purposes of this definition, "voting
stock" means stock having voting power for the election of
directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.
"Significant Subsidiary" means (i) any Subsidiary (other than
Southern Credit Corporation or any of its Subsidiaries) which at
the time of determination had total assets which, as of the date of
the Company's most recent quarterly consolidated balance sheet,
constituted at least 10% of the Company's total assets on a
consolidated basis as of such date or (ii) any Subsidiary which at
the time of determination had revenues for the three-month period
ending on the date of the Company's most recent quarterly
consolidated statement of income which constituted at least 10% of
the Company's total revenues on a consolidated basis for such
period.
LIMITATION ON LIENS
In the Indenture, the Company covenants that it will not nor
will it permit any Significant Subsidiary to create, assume, incur
or suffer to exist any Lien upon any stock or indebtedness, whether
owned on the date of the Indenture or thereafter acquired, of any
Significant Subsidiary (other than a Significant Subsidiary, the
stock or indebtedness of which at the date of the Indenture was
subject to a Lien or required to be subject to a Lien) to secure
any Obligation (other than the Convertible Subordinated Debt
Securities ) of the Company, any Subsidiary or any other Person
without in any such case making effective provision whereby all of
the Outstanding Convertible Subordinated Debt Securities shall be
directly secured equally and ratably with such Obligation,
excluding, however, from the operation of the foregoing provisions
any Lien upon stock or indebtedness of any corporation existing at
the time such corporation becomes a Significant Subsidiary or
existing or created upon stock or indebtedness of a Significant
Subsidiary at the time of acquisition of such stock or indebtedness
and any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any
such Lien; provided, however, that the principal amount of the
Obligation secured thereby shall not exceed the principal amount of
the Obligation so secured at the time of such extension, renewal or
replacement; and provided, further, that such Lien shall be limited
to all or such part of the stock or indebtedness which secured the
Lien so extended, renewed or replaced. (Section 1006)
EVENTS OF DEFAULT
The Indenture provides, with respect to any series of
Convertible Subordinated Debt Securities Outstanding thereunder,
that the following shall constitute Events of Default: (i) default
in the payment of any interest upon or any Additional Amounts
payable in respect of any Convertible Subordinated Debt Security of
that series or of any coupon appertaining thereto when the same
becomes due and payable, continued for 30 days; (ii) default in the
payment of the principal of or any premium on any Convertible
Subordinated Debt Security of that series at its Maturity; (iii)
default in the deposit of any sinking fund payment when due by the
terms of any Convertible Subordinated Debt Security of that series;
(iv) default in the performance or breach of any covenant or
warranty of the Company in the Indenture with respect to any
Convertible Subordinated Debt Security of that series, continued
for 60 days after written notice to the Company; (v) certain events
in bankruptcy, insolvency or reorganization; and (vi) any other
Event of Default provided with respect to Convertible Subordinated
Debt Securities of that series. (Section 501) The Company is
required to file with the Subordinated Trustee, annually, an
Officer's Certificate as to the Company's compliance with all
conditions and covenants under the Indenture. (Section 1004) The
Indenture provides that the Subordinated Trustee may
withhold notice to the Holders of Convertible Subordinated Debt
Securities of any default (except payment defaults on the
Convertible Subordinated Debt Securities ) in the event the
Subordinated Trustee considers it in the interest of the
Holders of Convertible Subordinated Debt Securities to do so.
(Section 601)
If an Event of Default with respect to Convertible
Subordinated Debt Securities of a particular series shall occur
and be continuing, the Subordinated Trustee or the Holders
of not less than 25% in principal amount of Outstanding Convertible
Subordinated Debt Securities of that series may declare the
Outstanding Convertible Subordinated Debt Securities of that
series due and payable immediately. (Section 502)
Subject to the provisions relating to the duties of the
Subordinated Trustee, in case an Event of Default with
respect to Convertible Subordinated Debt Securities of a particular
series shall occur and be continuing, the Subordinated
Trustee shall be under no obligation to exercise any of its rights
or powers under the Indenture at the request, order or direction of
any of the Holders of Convertible Subordinated Debt Securities of
such series, unless such Holders shall have offered to the
Subordinated Trustee reasonable indemnity and security
against the costs, expenses and liabilities that might be incurred
by it in compliance with such request. (Section 507 and TIA
Section 315) Subject to such provisions for the indemnification of
the Subordinated Trustee, the Holders of a majority in
principal amount of the Outstanding Convertible Subordinated Debt
Securities of such series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Subordinated Trustee under the Indenture or
exercising any trust or power conferred on the Subordinated
Trustee with respect to the Convertible Subordinated Debt
Securities of that series. (Section 512)
The Holders of not less than a majority in principal amount of
the Outstanding Convertible Subordinated Debt Securities of any
series may on behalf of the Holders of all the Convertible
Subordinated Debt Securities of such series and any related
coupons waive any past default under the Indenture with respect to
such series and its consequences, except a default (i) in the
payment of the principal of (or premium, if any) or interest on or
Additional Amounts payable in respect of any Convertible
Subordinated Debt Security of such series or (ii) in respect of a
covenant or provision that cannot be modified or amended without
the consent of the Holder of each Outstanding Convertible
Subordinated Debt Security of such series affected thereby.
(Section 513)
MERGER OR CONSOLIDATION
The Indenture provides that the Company may not consolidate
with or merge into any other corporation or convey or transfer its
properties and assets substantially as an entirety to any Person
unless either the Company is the continuing corporation or such
corporation or Person assumes by supplemental indenture all the
obligations of the Company under the Indenture and the Convertible
Subordinated Debt Securities and immediately after the transaction
no default shall exist. (Section 801)
MODIFICATION OR WAIVER
Modification and amendment of the Indenture as it applies to
any series of Convertible Subordinated Debt Securities may be made
by the Company and the Subordinated Trustee with the consent
of the Holders of not less than a majority in principal amount of
all Outstanding Convertible Subordinated Debt Securities of such
series; provided, that no such modification or amendment may,
without the consent of the Holder of each Outstanding Convertible
Subordinated Convertible Debt Security of such series affected
thereby, among other things: (i) change the Stated Maturity of the
principal of (or premium, if any, on) or any installment of
principal of or interest on any Convertible Debt Security, (ii)
reduce the principal amount or the rate of interest on or any
Additional Amounts payable in respect of or any premium payable
upon the redemption of any Convertible Subordinated Debt Security;
(iii) change any obligation of the Company to pay Additional
Amounts in respect of any Convertible Subordinated Debt Security;
(iv) reduce the amount of the principal of an original issue
discount Convertible Subordinated Debt Security that would be due
and payable upon a declaration of acceleration of the Maturity
thereof; (v) adversely affect any right of repayment at the option
of the Holder of any Convertible Subordinated Debt Security; (vi)
change the place or currency of payment of principal of or any
premium or interest on any Convertible Subordinated Debt Security;
(vii) impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof or any
Redemption Date or Repayment Date therefor; (viii) reduce the
percentage in principal amount of the Outstanding Convertible
Subordinated Debt Securities necessary to modify or amend the
Indenture or to consent to any waiver thereunder or reduce the
requirements for voting or quorum; or (ix) modify the foregoing
requirements or reduce the percentage in principal amount of the
Outstanding Convertible Subordinated Debt Securities necessary to
waive any past default. (Section 902)
Modification and amendment of the Indenture may be made by the
Company and Subordinated Trustee without the consent of any
Holder for any of the following purposes: (i) to evidence the
succession of another Person to the Company as obligor under the
Indenture; (ii) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Convertible
Subordinated Debt Securities; (iii) to add Events of Default for
the benefit of the Holders of all or any series of Convertible
Subordinated Debt Securities; (iv) to add or change any provisions
of the Indenture to facilitate the issuance of Bearer Securities;
(v) to change or eliminate any provisions of the Indenture,
provided, that any such change or elimination shall become
effective only when there are no Convertible Subordinated Debt
Securities Outstanding of any series created prior thereto that is
entitled to the benefit of such provision; (vi) to establish the
form or terms of Convertible Subordinated Debt Securities of any
series and any related coupons; (vii) to provide for the acceptance
of appointment by a successor Subordinated Trustee or
facilitate the administration of the trusts under the Indenture by
more than one Subordinated Trustee; (viii) to close the
Indenture with respect to the authentication and delivery of
additional series of Convertible Subordinated Debt Securities, to
cure any ambiguity, defect or inconsistency in the Indenture,
provided, that such action does not adversely affect the interests
of Holders of Convertible Subordinated Debt Securities of any
series in any material respect; or (ix) to supplement any of the
provisions of the Indenture to the extent necessary to permit or
facilitate defeasance and discharge of any series of Convertible
Subordinated Debt Securities, provided, that such action shall not
adversely affect the interests of the Holders of any Convertible
Subordinated Debt Securities in any material respect. (Section
901)
The Indenture contains provisions for convening meetings of
the Holders of Convertible Subordinated Debt Securities of a
series of Convertible Subordinated Debt Securities if that series
are issuable as Bearer Securities. (Section 1501) A meeting may
be called at any time by the Subordinated Trustee and, also,
upon request, by the Company or the Holders of at least 10% in
principal amount of the Outstanding Convertible Subordinated Debt
Securities of such series, in any such case upon notice given as
provided in the Indenture. (Section 1502) Except for any consent
that must be given by the Holder of each Convertible Subordinated
Debt Security affected thereby, as described above, any resolution
presented at a meeting or adjourned meeting at which a quorum is
present may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Convertible
Subordinated Debt Securities of that series; provided, that any
resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action that may be
made, given or taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the
Outstanding Convertible Subordinated Debt Securities of that series
may be adopted at a meeting or adjourned meeting duly reconvened at
which a quorum is present by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding
Convertible Subordinated Debt Securities of that series. Any
resolution passed or decision taken at any meeting of Holders of
Convertible Subordinated Debt Securities of any series duly held in
accordance with the Indenture will be binding on all Holders of
Convertible Subordinated Debt Securities of that series and the
related coupons. The quorum at any meeting called to adopt a
resolution and at any reconvened meeting will be the Persons
entitled to vote a majority in principal amount of the Outstanding
Convertible Subordinated Debt Securities of that series; provided,
that if any action is to be taken at such meeting with respect to
a consent or waiver which may be given by the Holders of not less
than a specified percentage in principal amount of the Outstanding
Convertible Subordinated Debt Securities of a series, then the
Persons entitled to vote such specified percentage in principal
amount of the Outstanding Convertible Subordinated Debt Securities
of such series will constitute a quorum. Notwithstanding the
foregoing provisions, if any action is to be taken at a meeting of
Holders of Convertible Subordinated Debt Securities of any series
with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that the Indenture
expressly provides may be made, given or taken by the Holders of a
specified percentage in principal amount of all Outstanding
Convertible Subordinated Debt Securities affected thereby, or of
the Holders of such series and one or more additional series, then
(i) there shall be no minimum quorum requirement for such meeting
and (ii) the principal amount of the Outstanding Convertible
Subordinated Debt Securities of such series that are voted in favor
of such request, demand, authorization, direction, notice, consent,
waiver or other action shall determine whether such request,
demand, authorization, direction, notice, consent, waiver or other
action has been made, given or taken under the Indenture. (Section
1504)
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides that, unless the provisions of Article
Fourteen are made inapplicable to the Convertible Subordinated Debt
Securities of or within any series and any related coupons pursuant
to Section 301 of the Indenture, then the Company may elect either
(i) to defease and be discharged from any and all obligations with
respect to such Convertible Subordinated Debt Securities and any
related coupons (except for the obligation to pay Additional
Amounts, if any, upon the occurrence of certain events of tax,
assessment or governmental charge with respect to payments on such
Convertible Subordinated Debt Securities and the obligations to
register the transfer or exchange of such Convertible Subordinated
Debt Securities and any related coupons, to replace temporary or
mutilated, destroyed, lost or stolen Convertible Subordinated Debt
Securities and any related coupons, to maintain an office or agency
in respect of such Convertible Subordinated Debt Securities and any
related coupons and to hold moneys for payment in trust)
("defeasance") (Section 1402) or (ii) to be released from its
obligations with respect to such Convertible Subordinated Debt
Securities and any related coupons under Section 1006 (being the
restriction described under "Limitation on Liens") or, if provided
pursuant to Section 301 of the Indenture, then its obligations with
respect to any other covenant, and any omission to comply with such
obligations shall not constitute a default or an Event of Default
with respect to such Convertible Subordinated Debt Securities and
any related coupons ("covenant defeasance") (Section 1403), in
either case upon the irrevocable deposit by the Company with the
Subordinated Trustee (or other qualifying trustee), in
trust, of an amount, in such Currency in which such Convertible
Subordinated Debt Securities and any related coupons are then
specified as payable at Stated Maturity, or Government Obligations
(as defined below), or both, applicable to such Convertible
Subordinated Debt Securities and any related coupons (with such
applicability being determined on the basis of the Currency in
which such Convertible Subordinated Debt Securities are then
specified as payable at Stated Maturity) that through the scheduled
payment of principal and interest in accordance with their terms
will provide money in an amount sufficient to pay the principal of
(and premium, if any) and interest, if any, on such Convertible
Subordinated Debt Securities and any related coupons, and any
mandatory sinking fund or analogous payments thereon, on the
scheduled due dates therefor.
Such a trust may only be established if, among other things,
the Company has delivered to the Subordinated Trustee an
Opinion of Counsel (as specified in the Indenture) to the effect
that the Holders of such Convertible Subordinated Debt Securities
and any related coupons will not recognize income, gain or loss for
United States federal income tax purposes as a result of such
defeasance or covenant defeasance and will be subject to United
States federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such
defeasance or covenant defeasance had not occurred, and such
Opinion of Counsel, in the case of defeasance under clause
(i) above, must refer to and be based upon a ruling of the Internal
Revenue Service or a change in applicable United States federal
income tax law occurring after the date of the Indenture. (Section
1404)
"Government Obligations" means securities that are (i) direct
obligations of the United States of America or the government that
issued the Foreign Currency in which the Convertible Subordinated
Debt Securities of a particular series are payable for the payment
of which its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government
that issued the Foreign Currency in which the Convertible
Subordinated Debt Securities of such series are payable, the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America or such other
government, which, in either case, are not callable or redeemable
at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian
with respect to any such Government Obligation or a specific
payment of interest on or principal of any such Government
Obligation held by such custodian for the account of the holder of
a depository receipt, provided, that (except as required by law)
such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of
the Government Obligation evidenced by such depository receipt.
(Section 101)
Unless otherwise provided in the Prospectus Supplement, if,
after the Company has deposited funds or Government Obligations to
effect defeasance or covenant defeasance with respect to
Convertible Subordinated Debt Securities of any series, (i) the
Holder of a Convertible Subordinated Debt Security of such series
is entitled to, and does, elect pursuant to the terms of such
Convertible Subordinated Debt Security to receive payment in a
Currency other than that in which such deposit has been made in
respect of such Convertible Subordinated Debt Security or (ii) the
Currency in which such deposit has been made in respect of any
Convertible Subordinated Debt Security of such series ceases to be
used by its government of issuance, then the indebtedness
represented by such Convertible Subordinated Debt Security shall be
deemed to have been, and will be, fully discharged and satisfied
through the payment of the principal of (and premium, if any) and
interest, if any, on such Convertible Subordinated Debt Security as
they become due out of the proceeds yielded by converting the
amount so deposited in respect of such Convertible Subordinated
Debt Security into the Currency in which such Convertible
Subordinated Debt Security becomes payable as a result of such
election or such cessation of usage based on the applicable Market
Exchange Rate. (Section 1405) Unless otherwise provided in the
Prospectus Supplement, all payments of principal of (and premium,
if any) and interest, if any, and Additional Amounts, if any, on
any Convertible Subordinated Debt Security that is payable in a
Foreign Currency that ceases to be used by its government of
issuance shall be made in U.S. dollars. (Section 312)
In the event the Company effects covenant defeasance with
respect to any Convertible Subordinated Debt Securities and any
related coupons and such Convertible Subordinated Debt Securities
and any related coupons are declared due and payable because of the
occurrence of any Event of Default other than the Event of Default
described in clause (iv) or (vi) under "Events of Default" with
respect to any covenant with respect to which there has been
defeasance, the Currency and Government Obligations on deposit with
the Subordinated Trustee will be sufficient to pay amounts
due on such Convertible Subordinated Debt Securities and any
related coupons at the time of their Stated Maturity but may not be
sufficient to pay amounts due on such Convertible Subordinated Debt
Securities and any related coupons at the time of the acceleration
resulting from such Event of Default. However, the Company would
remain liable to make payment of such amounts due at the time of
acceleration.
The Prospectus Supplement may further describe the provisions,
if any, permitting such defeasance or covenant defeasance,
including any modifications to the provisions described above, with
respect to the Convertible Subordinated Debt Securities of or
within a particular series and any related coupons.
RESIGNATION OF SUBORDINATED TRUSTEE
The Subordinated Trustee may resign or be removed with
respect to one or more series of Convertible Subordinated Debt
Securities and a successor Subordinated Trustee may be
appointed to act with respect to such series. (Section 608) In
the event that two or more persons are acting as
Subordinated Trustee with respect to different series of
Convertible Subordinated Debt Securities, each such
Subordinated Trustee shall be a Subordinated Trustee
of a trust under the Indenture separate and apart from the trust
administered by any other such Subordinated Trustee (Section
609), and any action described herein to be taken by the
" Subordinated Trustee" may then be taken by each such
Subordinated Trustee with respect to, and only with respect
to, the one or more series of Indenture Securities for which it is
Subordinated Trustee.
THE SUBORDINATED TRUSTEE
The Company may from time to time maintain bank accounts and
have other customary banking relationships with and obtain credit
facilities and lines of credit from the Subordinated Trustee
in the ordinary course of business. The Subordinated
Trustee may also serve as trustee under other indentures covering
other debt securities of the Company.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus
Supplement, payment of principal of and any premium, interest or
Additional Amounts on Registered Securities issued in certificated
form will be made at any office or agency to be maintained by the
Company in New York City, New York, except that, at the option of
the Company, payment of any interest (including Additional Amounts,
if any) may be made (i) by check mailed to the address of the
person entitled thereto as such address shall appear in the
applicable Security Register or (ii) by wire transfer to an account
maintained by the payee located inside the United States.
(Sections 307, 1001 and 1002) In the case of Global Securities,
such payment will be made to the Depository or its nominee in
accordance with the then-existing arrangements between the Paying
Agent and the Depository. See "Description of Convertible
Subordinated Debt Securities -- Global Securities" above. Unless
otherwise indicated in an applicable Prospectus Supplement, payment
of any installment of interest on Registered Securities will be
made to the person in whose name such Registered Security is
registered at the close of business on the Regular Record Date for
such payment. (Section 307)
Unless otherwise indicated in an applicable Prospectus
Supplement, payment of principal of and any premium, interest or
Additional Amounts on Bearer Securities will be payable, subject to
any applicable laws and regulations, at the offices of such Paying
Agents outside the United States as the Company may designate from
time to time. (Section 1002) Unless otherwise indicated in an
applicable Prospectus Supplement, payment of interest and certain
Additional Amounts on Bearer Securities on any Interest Payment
Date will be made only against surrender of the coupon relating to
the applicable Interest Payment Date. (Section 1001) Unless
otherwise provided in an applicable Prospectus Supplement, no
payment with respect to any Bearer Security will be made at any
office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an
account maintained with a bank located in the United States.
Notwithstanding the foregoing, payments of principal, premium, if
any, and interest, if any, and Additional Amounts, if any, in
respect of Bearer Securities payable in U.S. dollars will be made
at the office of the Company's Paying Agent in New York City, New
York, if (but only if) payment of the full amount thereof in U.S.
dollars at all offices or agencies located outside the United
States is illegal or effectively precluded by exchange controls or
other similar restrictions. (Section 1002)
Any Paying Agents located outside the United States and any
other Paying Agents in the United States initially designated by
the Company for the Convertible Subordinated Debt Securities will
be named in the Prospectus Supplement. The Company may at any time
designate additional Paying Agents or rescind the designation of
any Paying Agent or approve a change in the office through which
any Paying Agent acts, except that, if Convertible Subordinated
Debt Securities of a series are issuable only as Registered
Securities, then the Company will be required to maintain a Paying
Agent in each Place of Payment for such series and, if Convertible
Subordinated Debt Securities of a series are also issuable as
Bearer Securities, then the Company will be required to maintain
(i) a Paying Agent in New York City, New York, for payments with
respect to any Registered Securities of the series (and for
payments with respect to Bearer Securities of the series in the
circumstances described above, but not otherwise) and (ii) a Paying
Agent in a Place of Payment located outside the United States where
Convertible Subordinated Debt Securities of such series and any
coupons appertaining thereto may be presented and surrendered for
payment; provided, that if the Convertible Subordinated Debt
Securities of such series are listed on any stock exchange located
outside the United States and such stock exchange shall so require,
then the Company will maintain a Paying Agent in any other required
city located outside the United States, as the case may be, for the
Convertible Subordinated Debt Securities of such series. (Section
1002).
PLAN OF DISTRIBUTION
The Company may sell the Securities being offered hereby (i)
through agents, (ii) to or through underwriters, (iii) through
dealers and (iv) directly to purchasers. The Prospectus Supplement
sets forth the terms of the offering of the Securities to which
such Prospectus Supplement relates, including the name or names of
the underwriters, dealers or agents, the purchase price of the
Securities and the proceeds to the Company from the sale, any
underwriting discounts and other items constituting underwriters'
compensation and any discounts, concessions and commissions allowed
or paid to dealers or agents. Any initial public offering price
and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time.
If an underwriter or underwriters are utilized in the sale of
the Securities, the Company will execute an underwriting agreement
with such underwriter or underwriters at the time an agreement for
such sale is reached. The underwriter or underwriters with respect
to an underwritten offering of Securities are set forth in the
Prospectus Supplement relating to such offering and, if an
underwriting syndicate is used, the managing underwriter or
underwriters are set forth on the cover of such Prospectus
Supplement. Only underwriters named in a Prospectus Supplement
will be deemed to be underwriters in connection with the Securities
described therein. Firms not so named will have no direct or
indirect participation in the offering of such Securities, although
such a firm may participate in the distribution of such Securities
under circumstances entitling it to a dealer's commission. The
underwriting agreement may provide that the obligations of the
underwriters are subject to certain conditions precedent and that
the underwriters with respect to a sale of such offered Securities
will be obligated to purchase all such offered Securities if any
are purchased. In connection with the sale of Securities,
underwriters may be deemed to have received compensation from the
Company in the form of underwriting discounts or commissions and
may also receive commissions from purchasers of Securities for whom
they may act as agent. Underwriters may sell Securities to or
through dealers, and any such dealers may receive compensation in
the form of discounts, concessions or commissions from the
underwriters and/or commissions from the purchasers for whom they
may act as agent.
Securities may be offered and sold through agents designated
by the Company from time to time. Any such agent involved in the
offer or sale of the Securities in respect of which this Prospectus
is delivered is named in, and any commissions payable by the
Company to such agent are described in, the Prospectus Supplement.
Unless otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a best efforts basis for the period of its
appointment.
If a dealer is utilized in the sale of the Securities in
respect of which this Prospectus is delivered, the Company will
sell such Securities to the dealer as principal. The dealer may
then resell such Securities to the public at varying prices to be
determined by such dealer at the time of resale. Any such dealer
and the terms of any such sale are set forth in the Prospectus
Supplement relating thereto.
Offers to purchase Securities may be solicited directly by the
Company and sales thereof may be made by the Company directly to
institutional investors or others, who may be deemed to be
underwriters within the meaning of the Securities Act with respect
to any resale thereof. The terms of any such sales are described
in the Prospectus Supplement relating thereto.
Underwriters, dealers and agents participating in the
distribution of Securities may be deemed to be underwriters, and
any discounts and commissions received by them and any profit
realized by them on resale of the Securities may be deemed to be
underwriting discounts and commissions, under the Securities Act.
Underwriters, dealers and agents participating in the
distribution of Securities may be entitled, under agreements which
may be entered into with the Company, to indemnification by the
Company against certain liabilities, including liabilities under
the Securities Act, or to contribution by the Company to payments
such underwriters, dealers or agents may be required to make in
respect thereof.
The Securities may be sold at a fixed price or prices, which
may be changed, or from time to time at market prices prevailing at
the time of sale, at prices related to such prevailing market
prices or negotiated prices. The Company also may offer and sell
the Securities in exchange for one or more of its outstanding
issues of securities.
Underwriters, dealers or agents may be customers of, engage in
transactions with, or perform services for the Company and its
subsidiaries in the ordinary course of business.
The Securities may or may not be listed on a national or
foreign securities exchange. No assurance can be given that there
will be a market for the Securities.
LEGAL MATTERS
Unless otherwise indicated in the applicable Prospectus
Supplement, the legality of the Securities will be passed on for
the Company by Watson & Marshall L.C. , Kansas City,
Missouri. The legality of the securities will be passed on for any
underwriters, dealers or agents by counsel named in the applicable
Prospectus Supplement.
EXPERTS
The audited financial statements of the Company
incorporated in this Prospectus by reference to the Company's
Annual Report on Form 10-K for the year ended December 31,
1994 , have been so incorporated in reliance on the
reports of Price Waterhouse LLP , independent accountants,
given on the authority of that firm as experts in auditing and
accounting.
<PAGE>
_______________________________
No dealer, salesperson or other individual has been authorized
to give any information or to make any representations other than
those contained or incorporated by reference in this Prospectus in
connection with this offering and, if given or made, such
information or representations must not be relied upon as having
been authorized by the Company or the Underwriters. Neither the
delivery of this Prospectus, nor any sale made hereunder shall
under any circumstance create an implication that there has been no
change in the affairs of the Company since the date hereof. This
Prospectus does not constitute an offer to sell or a solicitation
of an offer to buy the Convertible Debt Securities offered hereby
by anyone in any state in which such offer or solicitation is not
authorized or in which the person making such offer or solicitation
is not qualified to do so or to anyone to whom it is unlawful to
make such offer or solicitation.
_______________
TABLE OF CONTENTS
Page
Available Information. . . .
Incorporation of Certain
Documents by Reference . .
The Company. . . . . . . . .
Use of Proceeds. . . . . . .
Ratio of Earnings to
Fixed Charges . . . . . . .
Description of Capital
Stock . . . . . . . . . . .
Description of Convertible
Senior Debt Securities
and Debt Securities. . . .
Description of Convertible
Subordinated Debt
Securities . . . . . . . .
Description of Certificates.
Plan of Distribution . . . .
Legal Matters. . . . . . . .
Experts. . . . . . . . . . .
_______________________________
<PAGE>
_______________________________
$500,000,000
KANSAS CITY SOUTHERN
INDUSTRIES, INC.
Securities
_______________
PROSPECTUS
_______________
_______________, 1995
___________________________
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
SEC registration fee . . . . . . . . . . . . . . $ 156,250
Blue Sky fees and expenses . . . . . . . . . . . *
Attorneys' fees and expenses . . . . . . . . . . *
Accountants' fees and expenses . . . . . . . . . *
Trustee's fees and expenses. . . . . . . . . . . *
Printing expenses. . . . . . . . . . . . . . . . *
Rating Agency fees . . . . . . . . . . . . . . . *
Miscellaneous. . . . . . . . . . . . . . . . . . *
Total . . . . . . . . . . . . . . . . . . $ *
__________
* To be filed by post-effective amendment.
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of
Delaware (the "Delaware Corporation Law") provides that a Delaware
corporation may indemnify directors and officers and certain other
individuals against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with the defense or settlement of
any threatened, pending or completed legal proceeding (other than
an action by or in the right of the corporation) in which they are
involved because they are a director, officer or other qualified
individual if they acted in good faith and in a manner that they
reasonably believed to be in or not opposed to the best interest of
the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that their conduct
was unlawful. If the legal proceeding is by or in the right of the
corporation, then directors, officers or other qualified
individuals may not be indemnified in respect of any claim, issue
or matter as to which they have been adjudged to be liable to the
corporation unless they acted in good faith and in a manner that
they reasonably believed to be in or not opposed to the best
interests of the corporation and a Delaware Court of Chancery
determines that such person is fairly and reasonably entitled to
such indemnification. If such individuals are successful on the
merits or otherwise in defense of any action, then Section 145
provides that such individuals shall be indemnified. Section
102(b)(7) of the Delaware Corporation Law provides that the
liability of a director may not be limited or eliminated for the
director's breach of his duty of loyalty to the corporation or its
stockholders, for his intentional acts or omissions not in good
faith, for his concurrence in or vote for an unlawful payment of a
dividend or unlawful stock purchase or redemption or for any
improper personal benefit derived by the director from any
transaction.
The Company's certificate of incorporation provides that, to
the fullest extent permitted by the Delaware Corporation Law, no
director of the Company shall be liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as
a director. The Company's bylaws provide that the directors and
officers of the Company and certain other individuals are to be
indemnified by the Company to the fullest extent permitted by
Section 145 of the Delaware Corporation Law for liability incurred
as a result of being threatened to be or being made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason
of the fact that he is a director or officer of the Company or
other qualifying person. The foregoing right of indemnification is
not exclusive of any other rights of indemnifications to which any
such individuals may be entitled to under any agreement, vote of
stockholders or disinterested directors or otherwise.
The Company maintains a policy of insurance under which the
insurer will, subject to certain conditions, defend the directors
and officers of the Company against and indemnify them from any
liability incurred in their capacities as such. In addition, under
the terms of contracts with the Company, certain directors and
officers are entitled to indemnification by the Company against
certain liabilities in their capacities as such.
Item 16. Exhibits.
Exhibit
Number Description of Exhibit
1(a) Form of Purchase Agreement.*
1(b) Form of Underwriting Agreement for Equity
Securities.*
1(c) Form of Underwriting Agreement for Debt Securities.*
1(d) Form of Underwriting Agreement for Convertible Debt
Securities.*
4(a) Indenture between Kansas City Southern Industries,
Inc. and The Chase Manhattan Bank, N.A., Trustee
relating to the Convertible Senior Debt Securities
and the Debt Securities.
Attached as Exhibit 4(a) to the Company's
Registration Statement on Form S-3 dated March 30,
1993 (file no. 33-60192) and incorporated herein by
reference.
4(b) Form of Subordinated Indenture
between Kansas City Southern Industries, Inc. and
the Subordinated Trustee , relating to the
Convertible Subordinated Debt Securities.
4(c) Specimen Certificate for Common Stock.
4(d) Specimen Certificate for Series Preferred Stock.*
4(e) Form of Debt Security.
Attached as Exhibit 4(b) to the Company's
Registration Statement on Form S-3 dated March 30,
1993 (file no. 33-60192) and incorporated herein by
reference.
4(f) Form of Convertible Senior Debt Security.*
4(g) Form of Convertible Subordinated Debt Security.*
4(h) Certificate of Incorporation of Kansas City
Southern Industries, Inc., as amended.
Attached as Exhibit 4 to the Company's Registration
Statement on Form S-8 (file no. 33-8880) and
incorporated herein by reference.
5 Opinion of Watson & Marshall L.C. as
to the legality of the Securities.
8 Opinion of Watson & Marshall L.C.
regarding tax matters.**
12 Statements re computation of ratios.
Attached as Exhibit 12 to the Company's Annual
Report on Form 10-K for the fiscal year ended
December 31, 1994 and incorporated
herein by reference.
2 4 (a) Consent of Price Waterhouse LLP .
2 4(b) Consent of Watson & Marshall
L.C. (included in Exhibit 5).
2 5 Power of attorney (included on
signature page). ***
2 6(a) Statement of eligibility of trustee
on Form T-1. ***
26(b) Statement of eligibility of
subordinated trustee on Form T-1.*
* To be filed by post-effective amendment.
** To be filed by post-effective amendment if applicable.
*** Indicates exhibits previously filed.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in
the information set forth in the registration
statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed
in the registration statement or any material
change to such information in the registration
statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by
those paragraphs is contained in periodic reports
filed by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-
effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such
securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being
registered which remain unsold at the termination
of the offering.
(b) The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the
Securities Act of 1933, each filing of the
registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of
an employee benefit plan's annual report pursuant
to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the
registration statement shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such
securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted
to directors, officers and controlling persons of
the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and
Exchange Commission such indemnification is against
public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a
claim for indemnification against such liabilities
(other than the payment by the registrant of
expenses incurred or paid by a director, officer or
controlling person of the registrant in the
successful defense of any action, suit or
proceeding) is asserted by such director, officer
or controlling person in connection with the
securities being registered, the registrant will,
unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question
whether such indemnification by it is against
public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted
from the form of prospectus filed as a part of this
registration statement in reliance upon Rule 430A
and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to
be part of this registration statement as of the
time it was declared effective.
(2) For the purpose of determining any liability under
the Securities Act of 1933, each post-effective
amendment that contains a form of prospectus shall
be deemed to be a new registration statement
relating to the securities offered therein, and the
offering of such securities at that time shall be
deemed to be the initial bona fide offering
thereof.
(e) With regard to the trustee under the Indenture
relating to the Convertible Subordinated Debt
Securities, the undersigned registrant hereby
undertakes to file an application for the purpose
of determining the eligibility of the trustee to
act under subsection (a) of section 310 of the
Trust Indenture Act ("Act") in accordance with the
rules and regulations prescribed by the Commission
under section 305(b)(2) of the Act.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and
has duly caused this amendment to this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Kansas City, State of Missouri, on this
18th day of April, 1995.
KANSAS CITY SOUTHERN INDUSTRIES, INC.
(Registrant)
By /s/ Albert P. Mauro
Albert P. Mauro
Vice President and
Corporate Secretary
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by or on
behalf of the following persons in the capacities and on the
dates indicated.
Signature and Name Capacity Date
/s/ A. Edward Allinson Director April 18, 1995
/s/ Paul F. Balser Director April 18, 1995
/s/ James E. Barnes Director April 18, 1995
/s/ Thomas S. Carter Director April 18, 1995
/s/George W. Edwards, Jr. Executive April 18, 1995
Vice
President;
Director
/s/ Michael G. Fitt Director April 18, 1995
/s/ Paul H. Henson Chairman of April 18, 1995
the Board of
Directors
/s/ Thomas A. McDonnell Executive April 18, 1995
Vice
President;
Director
/s/Joseph D. Monello Vice April 18, 1995
President
and
Chief
Financial
Officer
/s/ Landon H. Rowland President April 18, 1995
and Chief
Executive
Officer
/s/ Morton I. Sosland Director April 18, 1995
/s/ Louis G. Van Horn Comptroller; April 18, 1995
(Principal
Accounting
Officer
/s/ Joseph D. Monello April 18, 1995
Joseph D. Monello
As Attorney-in-Fact
<PAGE>
INDEX TO EXHIBITS
Exhibit No.
4(b) Form of Subordinated Indenture between
Kansas City Southern Industries, Inc. and the
subordinated trustee, relating to the
Convertible Subordinated Debt Securities.
4(c) Specimen Certificate for Common Stock.
5 Opinion of Watson & Marshall L.C. as to the
legality of the Securities.
24(a) Consent of Price Waterhouse LLP.
24(b) Consent of Watson & Marshall
L.C. (included in Exhibit 5).
<PAGE>
EXHIBIT 4(C)
[FORM OF FACE OF SPECIMEN CERTIFICATE]
CERTIFICATE THIS INCORPORATED CERTIFICATE
FOR NOT MORE CERTIFICATE IS UNDER THE FOR NOT
THAN 100,000 TRANSFERABLE LAWS OF THE MORE THAN
SHARES IN NEW YORK, STATE OF 100,000
N.Y. OR KANSAS DELAWARE SHARES
CITY, MO
NUMBER [# of COMMON STOCK CUSIP SHARES
Certificate] 485170 10 4
KCSI WITHOUT PAR SEE REVERSE
VALUE SIDE FOR
LEGEND
KANSAS CITY SOUTHERN INDUSTRIES, INC.
This is to certify that
Is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF
Kansas City Southern Industries, Inc., transferable in person of by
duly authorized attorney upon surrender of this Certificate
properly endorsed. This Certificate and the shares represented
hereby are subject to all the terms, conditions and limitations of
the Certificate of Incorporation and all amendments thereto. This
Certificate is not valid until countersigned by the Transfer Agent
or an Assistant Transfer Agent, and registered by the Registrar.
WITNESS the signatures of its duly authorized officers.
/s/ Landon Rowland
President
/s/ Albert P. Mauro
Vice President and Secretary
Countersigned:
Assistant Transfer Agent
KANSAS CITY SOUTHERN INDUSTRIES, INC.
Registered:
UNITED MISSOURI BANK OF KANSAS CITY, N.A., REGISTRAR
By:
Authorized Signature
<PAGE>
[FORM OF REVERSE OF SPECIMEN CERTIFICATE]
KANSAS CITY SOUTHERN INDUSTRIES, INC.
The Corporation is authorized to issue shares divided into three
classes: Preferred Stock, par value $25 per share; New Series
Preferred Stock, par value $1 per share; and Common Stock without
par value.
The Corporation will furnish without charge to each stockholder who
so requests, a statement of the rights, privileges, restrictions,
voting powers, limitations and qualifications of the classes of
stock of the Corporation. Requests may be directed to the
principal office of Kansas City Southern Industries, Inc., in
Kansas City, Missouri.
The provisions of the Certificate of Incorporation with respect to
the payment of dividends read in part as follows:
The holders of the Preferred Stock shall be entitled to receive
from the net earnings of the Corporation dividends thereon up to
but not exceeding the rate of Four per cent per annum, as the same
may be ascertained and determined by the directors, and in their
discretion declared, before any dividends shall be declared or paid
upon the New Series Preferred Stock or the Common Stock for the
same period, but such dividends on the Preferred Stock shall not be
cumulative nor shall the Preferred Stock during such period be
entitled to participate in any other or additional earnings or
profits, but such additional earnings or profits may be subject to
application by the directors to dividends upon the New Series
Preferred Stock or the Common Stock or other uses of the
Corporation, as they may determine.
The following abbreviations, when used in the inscription on the
face of this certificate, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM -as tenants in UNIF GIFT MIN ACT -
common
TEN ENT -as tenants by the (Cust) (Minor)
entireties under Uniform Gifts to
JT TEN -as joint tenants with Minors Act
right of survivor-
ship and not as (State)
tenants in common
Additional abbreviations may also be
used though not in the above list.
FOR VALUE RECEIVED,
hereby sell, assign and transfer
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF
ASSIGNEE
(PLEASE PRINT OR TYPEWRITE NAME
AND ADDRESS INCLUDING POSTAL ZIP
CODE OF ASSIGNEE
_____________________ Shares of
the capital stock represented by
the within Certificate, and do
hereby irrevocably constitute and
appoint __________ Attorney to
transfer the said stock on the
books of the within named Company
with full power of substitution
in the premises.
Dated: X
X
NOTICE: THE SIGNATURE TO THIS
ASSIGNMENT MUST CORRESPOND WITH
THE NAME AS WRITTEN UPON THE
FACE OF THE CERTIFICATE IN
EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR
ANY CHANGE WHATEVER.
Signature(s) Guaranteed By: This certificate also evidences
and entitles the holder hereof
to certain Rights as set forth
Banker or Member Firm of a in a Rights Agreement dated as
Major Stock Exchange of May 16, 1986 (the "Rights
Agreement") between Kansas City
Southern Industries, Inc. and
Harris Trust Company of New
York (the "Rights Agent"), the
terms of which are hereby
incorporated herein by
reference and a copy of which
is on file at the principal
executive offices of Kansas
City Southern Industries, Inc.
Under certain circumstances, as
set forth in the Rights
Agreement, such Rights will be
evidenced by separate
certificates and will no longer
be evidenced by this
certificate. The Rights Agent
will mail to the holder of this
certificate a copy of the
Rights Agreement without charge
after receipt of a written
request thereof. Under certain
circumstances, Rights
beneficially owned by Acquiring
Persons (as defined in the
Rights Agreement) and their
transferees may become null and
void.
<PAGE>
DESCRIPTION OF GRAPHICS ON FACE OF SPECIMEN CERTIFICATE
The face of the specimen certificate contains two columns of
burgundy colored decorative graphic print. One column is on the
left side of the certificate and one column is on the right side of
the certificate. Some of the language appearing on the face of the
specimen certificate appears in these columns. The number of the
certificate appears in the left column inside a lighter shaded
burgundy box. The number of shares represented by the certificate
would appear in the right column in a lighter shaded burgundy box.
At the top center of the face of the certificate appears an
oval image of four people, with a field and hills in the background
to the left and city buildings in the background on the right. The
four people consist of a woman in front in a business suit holding
papers, a man on either side of her, slightly behind her, one in
work clothes and one in dress pants, shirt and tie holding what
appears to be a reel of computer tape, and directly behind the
woman is a man dressed in a business suit.
In the center of the face of the certificate is a light
burgundy shaded box outlined in gray, containing the language "This
is to Certify that" and "is the owner of".
Also stamped across the face of the certificate in red ink is
the language "PAR VALUE CHANGED TO $0.01 PER SHARE" and, in blue
ink the word "VOID" where the name of the owner would appear, where
the number of shares would appear and where the countersignature
would appear.
In addition, the words "CERTIFICATE OF STOCK" appear in light
burgundy block letters across a paragraph appearing on the face of
the certificate.
<PAGE>
Exhibits 5 and 24(b)
April 18, 1995
Kansas City Southern Industries, Inc.
114 West 11th Street
Kansas City, Missouri 64105
Re: "Shelf" Registration Statement on Form S-3
for $500,000,000 Securities
Ladies and Gentlemen:
We have acted as counsel to Kansas City Southern Industries,
Inc., a Delaware corporation (the "Company"), in connection with
the preparation and filing with the U.S. Securities and Exchange
Commission (the "Commission") of a Registration Statement on Form
S-3 under the Securities Act of 1933, as amended (the "Securities
Act"), relating to the proposed offering from time to time on a
delayed or continuous basis pursuant to Rule 415 under the
Securities Act of up to $500,000,000 aggregate principal amount of
securities of the Company in one or more series, including (i)
shares of common stock, par value $.01 per share, and new series
preferred stock, par value $1.00 per share (collectively the
"Capital Stock"), and (ii) convertible senior debt securities,
convertible subordinated debt securities and other debt securities
(collectively the "Debt Securities").
In connection with rendering this opinion, we have examined
and relied on the following:
(a) The Registration Statement and exhibits thereto as filed
with the Commission on September 29, 1993, and Amendment No. 1 and
exhibits thereto expected to be filed with the Commission on or
about April 18, 1995 (together the "Registration Statement").
(b) The Indenture with respect to the convertible senior debt
securities and debt securities in the form filed as Exhibit 4(a) to
the Registration Statement.
(c) The Subordinated Indenture with respect to the
convertible subordinated debt securities in the form filed as
Exhibit 4(b) to the Registration Statement.
(d) Such documents, certificates and records of public
officials and the Company and its officers and other documents and
legal matters as we have deemed necessary for the purpose of
rendering this opinion.
As used hereinafter, the term "Trustee" refers to the Trustee
under the Indenture with respect to the convertible senior debt
securities and debt securities and to the Subordinated Trustee
under the Subordinated Indenture with respect to the convertible
subordinated debt securities, and the term "Indenture" refers to
the Indenture with respect to the convertible senior debt
securities and debt securities and to the Subordinated Indenture
with respect to the convertible subordinated debt securities.
Based on and subject to our examination described herein and
the assumptions, exceptions, qualifications and limitations set
forth herein, we are of the opinion that:
1. When the requirements referred to herein are satisfied,
the Capital Stock will be legally issued, fully paid and
nonassessable; provided that each of the requirements set forth
below has been satisfied.
(i) The number of shares of Capital Stock, together with
the number of shares of issued and outstanding shares of the
Company's capital stock and shares thereof held in treasury,
reserved for issuance or as to which options or other similar
rights have been granted, shall not exceed the number of shares of
capital stock in the aggregate or of the class or series of which
they are a part as authorized in the Company's certificate of
incorporation and any amendments thereto, and any pre-emptive
rights with respect to the issuance of the Capital Stock shall have
been satisfied or waived.
(ii) The issuance of the Capital Stock shall have been
duly authorized by the Company's board of directors and in
accordance with any applicable requirements of the Company's
certificate of incorporation and bylaws and any amendments thereto
and the General Corporation Law of Delaware ("Delaware Corporation
Law"), and any filing requirements under the Delaware Corporation
Law shall have been satisfied.
(iii)The certificates evidencing the Capital Stock shall
(A) conform to the form thereof as established by the Company's
board of directors, (B) have been duly authorized, executed and
authenticated, with the Company's corporate seal affixed thereto if
required, and (C) delivered by the Company to the purchasers
thereof against payment of the purchase price therefor by such
purchasers, as described in the Prospectus included in the
Registration Statement and in the applicable Prospectus Supplement
thereto.
(iv) The purchase price for the Capital Stock shall
constitute adequate consideration therefor as required by the
Delaware Corporation Law.
2. When the requirements referred to herein are satisfied,
the Debt Securities will constitute the legal, valid and binding
obligations of the Company, entitled to the benefits and subject to
the provisions of the Indenture, except to the extent that (a)
enforcement of the Company's obligations under the Debt Securities
may be subject to or limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect relating to or affecting creditors' rights generally and
general principles of equity (regardless of whether enforcement is
considered in proceeding at law or in equity) and (b) the remedy of
specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion
of the court before which any proceedings therefor may be brought;
provided, that each of the requirements set forth below has been
satisfied.
(i) The Indenture shall have been qualified under the
Trust Indenture Act of 1939, as amended, and duly authorized,
executed and delivered by the Company and the Trustee in
substantially the form filed as an exhibit to the Registration
Statement.
(ii) The Debt Securities shall (A) conform to the terms
and form thereof as established by the Board Resolution (as defined
in the Indenture) establishing the series of which such Debt
Securities are a part, (B) have been duly authorized and executed
by the Company and delivered to the Trustee for authentication and
delivery by the Trustee, (C) have been duly authenticated by the
Trustee in accordance with the Indenture and (D) have been
delivered by the Trustee in accordance with the Indenture to the
purchasers thereof against payment of the purchase price therefor
by such purchasers, as described in the Prospectus included in the
Registration Statement and in the applicable Prospectus Supplement
thereto.
In the case of both the Capital Stock and the Debt Securities,
we have assumed that on the dates of issuance thereof the
Registration Statement shall have been declared effective by the
Commission and no stop order suspending the effectiveness thereof
shall have been issued under the Securities Act, and any other
requirements under the Securities Act and the Commission's rules
and regulations thereunder shall have been satisfied.
This opinion is based on applicable law and our understanding
of factual matters at the date hereof and we disclaim any
obligation to revise or supplement this opinion based on any change
in applicable law or any factual matter that occurs or comes to our
attention after the date hereof.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to our firm
under the caption "Legal Matters" in the Prospectus included in the
Registration Statement. In giving such consent, however, we do not
admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act or the General Rules
and Regulations of the Commission.
Very truly yours,
/s/ WATSON & MARSHALL L.C.
<PAGE>
Exhibit 24(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this Registration Statement on Form
S-3 of our report dated February 25, 1995, which appears on page 47
of the 1994 Annual Report to Stockholders of Kansas City Southern
Industries, Inc., which is incorporated by reference in Kansas City
Southern Industries, Inc.'s Annual Report on Form 10-K for the year
ended December 31, 1994. We also consent to the reference to us
under the heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
Kansas City, Missouri
April 17, 1995
<PAGE>
Exhibit 4(b)
6480/81/82U/103
KANSAS CITY SOUTHERN INDUSTRIES, INC.
To
____________________________________
Trustee
Subordinated Indenture
Dated as of _________________
<PAGE>
TABLE OF CONTENTS
Page
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS: . . . . . . . . . . . . . . . . . . .1
Act . . . . . . . . . . . . . . . . . . . . . . .2
Additional Amounts. . . . . . . . . . . . . . . .2
Affiliate . . . . . . . . . . . . . . . . . . . .2
Authenticating Agent. . . . . . . . . . . . . . .2
Authorized Newspaper. . . . . . . . . . . . . . .2
Bearer Security . . . . . . . . . . . . . . . . .2
Board of Directors. . . . . . . . . . . . . . . .3
Board Resolution. . . . . . . . . . . . . . . . .3
Business Day. . . . . . . . . . . . . . . . . . .3
CEDEL . . . . . . . . . . . . . . . . . . . . . .3
Commission. . . . . . . . . . . . . . . . . . . .3
Common Depositary . . . . . . . . . . . . . . . .3
Company . . . . . . . . . . . . . . . . . . . . .3
Company Request or Company Order. . . . . . . . .3
Conversion Date . . . . . . . . . . . . . . . . .3
Conversion Event. . . . . . . . . . . . . . . . .3
Corporate Trust Office. . . . . . . . . . . . . .4
corporation . . . . . . . . . . . . . . . . . . .4
coupon. . . . . . . . . . . . . . . . . . . . . .4
Currency. . . . . . . . . . . . . . . . . . . . .4
Defaulted Interest. . . . . . . . . . . . . . . .4
Dollar or $ . . . . . . . . . . . . . . . . . . .4
Dollar Equivalent of the Currency Unit. . . . . .4
Dollar Equivalent of the Foreign Currency . . . .4
ECU . . . . . . . . . . . . . . . . . . . . . . .4
Election Date . . . . . . . . . . . . . . . . . .4
Euroclear . . . . . . . . . . . . . . . . . . . .4
European Communities. . . . . . . . . . . . . . .4
European Monetary System. . . . . . . . . . . . .4
Event of Default. . . . . . . . . . . . . . . . .4
Exchange Date . . . . . . . . . . . . . . . . . .4
Exchange Rate Agent . . . . . . . . . . . . . . .5
Exchange Rate Officer's Certificate . . . . . . .5
Federal Bankruptcy Code . . . . . . . . . . . . .5
Foreign Currency. . . . . . . . . . . . . . . . .5
Government Obligations. . . . . . . . . . . . . .5
Holder. . . . . . . . . . . . . . . . . . . . . .5
Indenture . . . . . . . . . . . . . . . . . . . .5
Indexed Security. . . . . . . . . . . . . . . . .6
interest. . . . . . . . . . . . . . . . . . . . .6
Interest Payment Date . . . . . . . . . . . . . .6
Lien. . . . . . . . . . . . . . . . . . . . . . .6
Market Exchange Rate. . . . . . . . . . . . . . .6
Maturity. . . . . . . . . . . . . . . . . . . . .7
Obligation. . . . . . . . . . . . . . . . . . . .7
Officers' Certificate . . . . . . . . . . . . . .7
Opinion of Counsel. . . . . . . . . . . . . . . .7
Original Issue Discount Security. . . . . . . . .7
Outstanding . . . . . . . . . . . . . . . . . . .7
Paying Agent. . . . . . . . . . . . . . . . . . .8
Person. . . . . . . . . . . . . . . . . . . . . .9
Place of Payment. . . . . . . . . . . . . . . . .9
Predecessor Security. . . . . . . . . . . . . . .9
Redemption Date . . . . . . . . . . . . . . . . .9
Redemption Price. . . . . . . . . . . . . . . . .9
Registered Security . . . . . . . . . . . . . . .9
Regular Record Date . . . . . . . . . . . . . . .9
Repayment Date. . . . . . . . . . . . . . . . . .9
Repayment Price . . . . . . . . . . . . . . . . .9
Responsible Officer . . . . . . . . . . . . . . .9
Security or Securities. . . . . . . . . . . . . .9
Security Register and Security Registrar. . . . 10
Significant Subsidiary. . . . . . . . . . . . . 10
Special Record Date . . . . . . . . . . . . . . 10
Stated Maturity . . . . . . . . . . . . . . . . 10
Subsidiary. . . . . . . . . . . . . . . . . . . 10
Trust Indenture Act or TIA. . . . . . . . . . . 10
Trustee . . . . . . . . . . . . . . . . . . . . 10
United States . . . . . . . . . . . . . . . . . 10
United States person. . . . . . . . . . . . . . 11
Valuation Date. . . . . . . . . . . . . . . . . 11
Vice President. . . . . . . . . . . . . . . . . 11
Yield to Maturity . . . . . . . . . . . . . . . 11
SECTION 102. Compliance Certificates and Opinions. . . . . . 11
SECTION 103. Form of Documents Delivered to Trustee. . . . . 12
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . 12
SECTION 105. Notices, Etc., to Trustee and Company . . . . . 14
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . 14
SECTION 107. Effect of Headings and Table of Contents. . . . 15
SECTION 108. Successors and Assigns. . . . . . . . . . . . . 15
SECTION 109. Separability Clause . . . . . . . . . . . . . . 15
SECTION 110. Benefits of Indenture . . . . . . . . . . . . . 16
SECTION 111. Governing Law . . . . . . . . . . . . . . . . . 16
SECTION 112. Legal Holidays. . . . . . . . . . . . . . . . . 16
SECTION 113. Conflict of any Provision of Indenture with
Trust Indenture Act . . . . . . . . . . . . . 16
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities . . . . . . . . . . . . . . 16
SECTION 202. Form of Trustee's Certificate of Authentication 17
SECTION 203. Securities Issuable in Global Form. . . . . . . 17
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. . . . . . 18
SECTION 302. Denominations . . . . . . . . . . . . . . . . . 22
SECTION 303. Execution, Authentication, Delivery and Dating. 22
SECTION 304. Temporary Securities. . . . . . . . . . . . . . 24
SECTION 305. Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities30
SECTION 307. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset . . . . . . . . . . . . 31
SECTION 308. Optional Extension of Maturity. . . . . . . . . 34
SECTION 309. Persons Deemed Owners . . . . . . . . . . . . . 35
SECTION 310. Cancellation. . . . . . . . . . . . . . . . . . 36
SECTION 311. Computation of Interest . . . . . . . . . . . . 36
SECTION 312. Currency and Manner of Payments in Respect of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 313. Appointment and Resignation of Successor Exchange
Rate Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.. . . . 40
SECTION 402. Application of Trust Funds. . . . . . . . . . . 42
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . 42
SECTION 502. Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . . . . . . 44
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . 45
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . 45
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons . . . . . 46
SECTION 506. Application of Money Collected. . . . . . . . . 46
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . 47
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . . 48
SECTION 509. Restoration of Rights and Remedies. . . . . . . 48
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . 48
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . 48
SECTION 512. Control by Holders of Securities. . . . . . . . 48
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . 49
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. . . . . . . . . . . . . . . 49
SECTION 602. Certain Rights of Trustee . . . . . . . . . . . 50
SECTION 603. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 604. May Hold Securities . . . . . . . . . . . . . . 51
SECTION 605. Money Held in Trust . . . . . . . . . . . . . . 51
SECTION 606. Compensation and Reimbursement. . . . . . . . . 51
SECTION 607. Corporate Trustee Required; Eligibility.. . . . 52
SECTION 608. Resignation and Removal; Appointment of Successor52
SECTION 609. Acceptance of Appointment by Successor. . . . . 54
SECTION 610. Merger, Conversion, Consolidation or
Succession to Business. . . . . . . . . . . . 55
SECTION 611. Appointment of Authenticating Agent . . . . . . 55
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders. . 57
SECTION 702. Reports by Trustee. . . . . . . . . . . . . . . 57
SECTION 703. Reports by Company. . . . . . . . . . . . . . . 57
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 802. Successor Person Substituted. . . . . . . . . . 59
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 902. Supplemental Indentures with Consent of Holders 61
SECTION 903. Execution of Supplemental Indentures. . . . . . 62
SECTION 904. Effect of Supplemental Indentures . . . . . . . 62
SECTION 905. Conformity with Trust Indenture Act . . . . . . 62
SECTION 906. Reference in Securities to, Supplemental
Indentures. . . . . . . . . . . . . . . . . . 62
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any and
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1002. Maintenance of Office or Agency . . . . . . . . 63
SECTION 1003. Money for Securities Payments to Be Held in Trust64
SECTION 1004. Statement as to Compliance. . . . . . . . . . . 66
SECTION 1005. Additional Amounts. . . . . . . . . . . . . . . 66
SECTION 1006. Limitation on Liens on Stock or Indebtedness
of Significant Subsidiaries . . . . . . . . . 67
SECTION 1007. Waiver of Certain Covenants . . . . . . . . . . 67
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. . . . . . . . . . . . 68
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . 68
SECTION 1103. Selection by Trustee of Securities to Be Redeemed68
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . 68
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . 70
SECTION 1106. Securities Payable on Redemption Date . . . . . 70
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . 71
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. . . . . . . . . . . . 71
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1203. Redemption of Securities for Sinking Fund . . . 72
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. . . . . . . . . . . . 73
SECTION 1302. Repayment of Securities . . . . . . . . . . . . 73
SECTION 1303. Exercise of Option. . . . . . . . . . . . . . . 73
SECTION 1304. When Securities Presented for Payment
Become Due and Payable. . . . . . . . . . . . 74
SECTION 1305. Securities Repaid in Part . . . . . . . . . . . 75
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance. . . 75
SECTION 1402. Defeasance and Discharge. . . . . . . . . . . . 75
SECTION 1403. Covenant Defeasance . . . . . . . . . . . . . . 76
SECTION 1404. Conditions to Defeasance or Covenant Defeasance 76
SECTION 1405. Deposited Money and Government Obligations
to Be Held in Trust; Other Miscellaneous
Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . 78
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called . . . 79
SECTION 1502. Call, Notice and Place of Meetings. . . . . . . 79
SECTION 1503. Persons Entitled to Vote at Meetings. . . . . . 80
SECTION 1504. Quorum; Action. . . . . . . . . . . . . . . . . 80
SECTION 1505. Determination of Voting Rights; Conduct
and Adjournment of Meetings . . . . . . . . . 81
SECTION 1506. Counting Votes and Recording Action of Meetings 82
ARTICLE SIXTEEN
SUBORDINATION
SECTION 1601. Securities Subordinated to Senior Debt. . . . . 82
SECTION 1602. Subrogation . . . . . . . . . . . . . . . . . . 84
SECTION 1603. Obligation of Company Unconditional . . . . . . 84
SECTION 1604. No Payment on Securities in Event of Default
on Senior Debt. . . . . . . . . . . . . . . . 85
SECTION 1605. Payment on Securities Permitted . . . . . . . . 85
SECTION 1606. Effectuation of Subordination by Trustee. . . . 85
SECTION 1607. Knowledge of Trustee. . . . . . . . . . . . . . 85
SECTION 1608. Trustee's Relation to Senior Debt . . . . . . . 86
SECTION 1609. Rights of Holders of Senior Debt Not Impaired . 86
SECTION 1610. Modification of Terms of Senior Debt. . . . . . 86
SECTION 1611. Definition of Senior Debt . . . . . . . . . . . 86
ARTICLE SEVENTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS, AND EMPLOYEES
SECTION 1701. Exemption from Individual Liability . . . . . . 87
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . . 88
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . 88
ACKNOWLEDGEMENTS
EXHIBIT A - FORMS OF CERTIFICATION
<PAGE>
KANSAS CITY SOUTHERN INDUSTRIES, INC.
Reconciliation and tie between Trust Indenture Act of
1939 and Indenture, dated as of _________________
Trust Indenture Act Section Indenture Section
Section 310(a)(1) . . . . . . . . . . . . . . . . . . 607(a)
(a)(2) . . . . . . . . . . . . . . . . . . . . . 607(a)
(b). . . . . . . . . . . . . . . . . . . . .607(b), 608
Section 312(c). . . . . . . . . . . . . . . . . . . . . .701
Section 314(a). . . . . . . . . . . . . . . . . . . . . .703
(a)(4) . . . . . . . . . . . . . . . . . . . . . . 1004
(c)(1) . . . . . . . . . . . . . . . . . . . . . . .102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . .102
(e). . . . . . . . . . . . . . . . . . . . . . . . .102
Section 315(b). . . . . . . . . . . . . . . . . . . . . .601
Section 316(a) (last sentence). . . . . . . . . . . . . .101
("Outstanding")
(a)(1)(A). . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . .513
(b). . . . . . . . . . . . . . . . . . . . . . . . .508
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . .503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . .504
Section 318(a). . . . . . . . . . . . . . . . . . . . . .107
(c). . . . . . . . . . . . . . . . . . . . . . . . .107
NOTE: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
<PAGE>
SUBORDINATED INDENTURE, dated as of _________________ between
KANSAS CITY SOUTHERN INDUSTRIES, INC., a corporation duly organized
and existing under the laws of the State of Delaware (hereinafter
called the "Company"), and _________________________________,
trustee (hereinafter 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 subordinated debentures, notes or other evidences of
indebtedness (hereinafter called the "Securities"), unlimited as to
principal amount, to be issued in one or more series, to bear such
rates of interest, to mature at such times and to have such other
provisions as shall be fixed as hereinafter provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of
this Indenture and shall, to the extent applicable, be governed by
such provisions regardless of whether such provisions are expressly
contained herein.
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 any series thereof, and coupons, if any, 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, and the terms
"cash transaction" and "self-liquidating paper", as used in
TIA Section 311, shall have the meanings assigned to them in
the rules of the Commission adopted under the Trust Indenture
Act;
(3) 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
(4) the words "herein", "hereof " and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Three, Article
Five, Article Six and Article Ten, are defined in those Articles.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are
required by a Security or by or pursuant to a Board Resolution,
under circumstances specified therein, to be paid by the Company in
respect of certain taxes imposed on certain Holders and which are
owing to such Holders.
"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.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, in the English
language or in an official language of the country of publication,
customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays, and of general
circulation in each place in connection with which the term is used
or in the financial community of each such place. Where successive
publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different
newspapers in the same city meeting the foregoing requirements and
in each case on any Business Day.
"Bearer Security" means any Security established pursuant to
Section 201 which is payable to bearer.
"Board of Directors" means the board of directors of the
Company, the executive committee or any committee of that board
duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the
Trustee.
"Business Day", when used with respect to any Place of
Payment, the Corporate Trust Office or any other particular
location referred to in this Indenture or in the Securities, means,
unless otherwise specified with respect to any Securities pursuant
to Section 301, each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in that
Place of Payment, the location of the Corporate Trust Office or
particular location are authorized or obligated by law or executive
order to close.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres,
S.A., or its successor.
"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
execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Depositary" has the meaning specified in Section
304(b).
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
corporation. To the extent necessary to comply with the
requirements of the provisions of Trust Indenture Act Sections 310
through 317 as they are applicable to the Company, the term
"Company" shall include any other obligor with respect to the
Securities for the purposes of complying with such provisions.
"Company Request" or "Company Order" mean, respectively, a
written request or order signed in the name of the Company by the
Chairman, the President, any Vice President, the Treasurer or an
Assistant Treasurer of the Company, and delivered to the Trustee.
"Conversion Date" has the meaning specified in Section 312(d).
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such
Currency and by a central bank or other public institutions of or
within the international banking community for the settlement of
transactions, (ii) the ECU both within the European Monetary System
and for the settlement of transactions by public institutions of or
within the European Communities or (iii) any currency unit (or
composite currency) other than the ECU for the purposes for which
it was established.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which, at any particular time, its
corporate trust business shall be administered, which office at the
date hereof is located at
__________________________________________________, except that for
purposes of Section 1002, such term shall mean the office or agency
of the Trustee in the City of _________________.
"corporation" includes corporations, associations, companies
and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Currency" means any currency or currencies, composite
currency or currency unit or currency units, including, without
limitation, the ECU, issued by the government of one or more
countries or by any recognized confederation or association of such
governments.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be
legal tender for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning
specified in Section 312(g).
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 312(f).
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 312(h).
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear
System.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic
Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of
the European Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent" means, with respect to Securities of or
within any series, unless otherwise specified with respect to any
Securities pursuant to Section 301, a New York Clearing House bank
designated pursuant to Section 301 or Section 313.
"Exchange Rate Officer's Certificate" means a certificate
setting forth (i) the applicable Market Exchange Rate or the
applicable bid quotation and (ii) the Dollar or Foreign Currency
amounts of principal (and premium, if any) and interest, if any (on
an aggregate basis and on the basis of a Security having the lowest
denomination principal amount determined in accordance with Section
302 in the relevant Currency), payable with respect to a Security
of any series on the basis of such Market Exchange Rate or the
applicable bid quotation, signed by the Treasurer, any Vice
President or any Assistant Treasurer of the Company.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11
of the United States Code, as amended from time to time.
"Foreign Currency" means any currency other than Currency of
the United States.
"Government Obligations" means, unless otherwise specified
with respect to any series of Securities pursuant to Section 301,
securities which are (i) direct obligations of the United States of
America or the government which issued the Foreign Currency in
which the Securities of a particular series are payable, for the
payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America or
such government which issued the Foreign Currency in which the
Securities of such series are payable, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by
the United States of America or such other government, which, in
either case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued
by a bank or trust company as custodian with respect to any such
Government Obligation or a specific payment of interest on or
principal of any such Government Obligation held by such custodian
for the account of the holder of a depository receipt, provided
that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by
such depository receipt.
"Holder" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security
Register and, in the case of a Bearer Security, the bearer thereof
and, when used with respect to any coupon, shall mean the bearer
thereof.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, and shall include the terms of
particular series of Securities established as contemplated by
Section 301; provided, however, that, if at any time more than one
Person is acting as Trustee under this instrument, "Indenture"
shall mean, with respect to any one or more series of Securities
for which 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
the or those 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.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be
more or less than the principal face amount thereof at original
issuance.
"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 at the rate
prescribed in such Original Issue Discount Security.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"Lien" means any mortgage, pledge, lien, encumbrance, charge
or security interest of any kind.
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, (i) for any
conversion involving a currency unit on the one hand and Dollars or
any Foreign Currency on the other, the exchange rate between the
relevant currency unit and Dollars or such Foreign Currency
calculated by the method specified pursuant to Section 301 for the
Securities of the relevant series, (ii) for any conversion of
Dollars into any Foreign Currency, the noon (New York City time)
buying rate for such Foreign Currency for cable transfers quoted in
New York City as certified for customs purposes by the Federal
Reserve Bank of New York and (iii) for any conversion of one
Foreign Currency into Dollars or another Foreign Currency, the spot
rate at noon local time in the relevant market at which, in
accordance with normal banking procedures, the Dollars or Foreign
Currency into which conversion is being made could be purchased
with the Foreign Currency from which conversion is being made from
major banks located in either New York City, London or any other
principal market for Dollars or such purchased Foreign Currency, in
each case determined by the Exchange Rate Agent. Unless otherwise
specified with respect to any Securities pursuant to Section 301,
in the event of the unavailability of any of the exchange rates
provided for in the foregoing clauses (i), (ii) and (iii), the
Exchange Rate Agent shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank
of New York as of the most recent available date, or quotations
from one or more major banks in New York City, London or other
principal market for such Currency in question, or such other
quotations as the Exchange Rate Agent shall deem appropriate.
Unless otherwise specified by the Exchange Rate Agent, if there is
more than one market for dealing in any Currency by reason of
foreign exchange regulations or otherwise, the market to be used in
respect of such Currency shall be that upon which a nonresident
issuer of securities designated in such Currency would purchase
such Currency in order to make payments in respect of such
securities.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration,
notice of redemption, notice of option to elect repayment or
otherwise.
"Obligation" means indebtedness for money borrowed or
indebtedness evidenced by a bond, note, debenture or other evidence
of indebtedness.
"Officers' Certificate" means a certificate signed by the
Chairman, the President or a Vice President and by the Treasurer,
an Assistant Treasurer, the Comptroller or an Assistant
Comptroller, the Secretary or an Assistant Secretary, of the
Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company or who may be an employee of or
other counsel for the Company. Each such opinion shall include the
statements provided for in Trust Indenture Act Section 314(e) to
the extent applicable.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 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 cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment
or redemption or repayment at the option of the Holder money
in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders
of such Securities and any coupons appertaining thereto;
provided that, if such Securities are to be redeemed, ,notice
of such redemption has been duly given pursuant to this
Indenture or provision for such notice satisfactory to the
Trustee has been made;
(iii) Securities, except to the extent provided in
Sections 1402 and 1403, with respect to which the Company has
effected defeasance and/or covenant defeasance as provided in
Article Fourteen; and
(iv) 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 are present at a meeting of Holders for quorum
purposes, and for the purpose of making the calculations required
by TIA Section 313, (i) the principal amount of an Original Issue
Discount Security that may be counted in making such determination
or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that
would be (or shall have been declared to be) due and payable, at
the time of such determination, upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502, (ii) the principal
amount of any Security denominated in a Foreign Currency that may
be counted in making such determination or calculation and that
shall be deemed Outstanding for such purpose shall be equal to the
Dollar equivalent, determined as of the date such Security is
originally issued by the Company as set forth in an Exchange Rate
Officer's Certificate delivered to the Trustee, of the principal
amount (or, in the case of an Original Issue Discount Security, the
Dollar equivalent as of such date of original issuance of the
amount determined as provided in clause (i) above) of such
Security, (iii) the principal amount of any Indexed Security that
may be counted in making such determination or calculation and that
shall be deemed Outstanding for such purpose shall be equal to the
principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Security
pursuant to Section 301, and (iv) Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the
Trustee shall be protected in making such calculation or in relying
upon any such request, demand, authorization, direction, notice,
consent or waiver, only 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 reasonable 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 (including the Company acting
as Paying Agent) authorized by the Company to pay the principal of
(or premium, if any) or interest on any Securities or coupons on
behalf of the Company.
"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" means, when used with respect to the
Securities of or within any series, the place or places where the
principal of (and premium, if any) and interest on such Securities
are payable as specified as contemplated by Sections 301 and 1002.
"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 or a Security to which a mutilated,
destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen
Security or the Security to which the mutilated, destroyed, lost or
stolen coupon appertains.
"Redemption Date", when used with respect to any Security to
be redeemed, in whole or in part, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"Registered Security" means any Security which is registered
in the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series
means the date specified for that purpose as contemplated by
Section 301, whether or not a Business Day.
"Repayment Date" means, when used with respect to any Security
to be repaid at the option of the Holder, the date fixed for such
repayment by or pursuant to this Indenture.
"Repayment Price" means, when used with respect to any
Security to be repaid at the option of the Holder, the price at
which it is to, be repaid by or pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and, more particularly, means any
Security or 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.
"Significant Subsidiary" means (A) any Subsidiary (other than
Southern Credit Corporation and its Subsidiaries) which at the time
of determination had total assets which, as of the date of the
Company s most recent quarterly consolidated balance sheet,
constituted at least 10% of the Company's total assets on a
consolidated basis as of such date or (B) any Subsidiary which at
the time of determination had revenues for the three-month period
ending on the date of the Company's most recent quarterly
consolidated statement of income which constituted at least 10% of
the Company's total revenues on a consolidated basis for such
period.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of or within any series 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 or a coupon representing such
installment of interest as the fixed date on which the principal of
such Security or such installment of principal or interest is due
and payable, as such date may be extended pursuant to the
provisions of Section 308.
"Subsidiary" means a corporation, partnership or joint-venture
a majority of the outstanding voting stock or other equity interest
entitled ordinarily to vote in the election of the directors or
other governing body (however designated) of which is owned or
controlled, directly or indirectly, by the Company or by one or
more other Subsidiaries of the Company. For the purposes of this
definition, "voting stock" means stock having voting power for the
election of directors, whether at all times or only so long as no
senior class of stock has such voting power by reason of any
contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as amended and as in force at the date as of which this
Indenture was executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each
Person who is then a Trustee hereunder; provided, however, that if
at any time there is more than one such Person, "Trustee" as used
with respect to the Securities of any series shall mean only the
Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, the United States of
America (including the states and the District of Columbia), its
territories, its possessions and other areas subject to its
jurisdiction.
"United States person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual
who is a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the
laws of the United States or an estate or trust the income of which
is subject to United States federal income taxation regardless of
its source.
"Valuation Date" has the meaning specified in Section 312(c).
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title "Vice
President."
"Yield to Maturity" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most
recent redetermination of interest on such Security) and as set
forth in such Security in accordance with generally accepted United
States bond yield computation principles.
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 (other than
pursuant to Section 1004) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant 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 as
to whether or not such condition or covenant has been complied
with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied
with.
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 as to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon an Opinion of
Counsel, or a certificate or representations by counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the opinion, certificate or representations with respect
to the matters upon which his certificate or opinion is based are
erroneous. Any such Opinion of Counsel or certificates or
representations 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
as 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 as
to such matters is erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
SECTION 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 of the
Outstanding Securities of all series or one or more series, as the
case may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders
in person or by agents duly appointed in writing. If Securities of
a series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of
Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions
of Article Fifteen, or a combination of such instruments and any
such record. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments or so
voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee
and the Company and any agent of the Trustee or the Company, if
made in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the manner
provided in Section 1506.
(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 his individual
capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same,
shall be proved by the Security Register.
(d) The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same,
may be proved by the production of such Bearer Securities or by a
certificate executed, as depositary, by any trust company, bank,
banker or other depositary, wherever situated, if such certificate
shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security
is produced to the Trustee by some other Person, or (3) such Bearer
Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal
amount and serial numbers of Bearer Securities held by any Person,
and the date of holding the same, may also be proved in any other
manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of
Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may,
at its option, in or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice, consent,
waiver or other Act, but the Company shall have no obligation to do
so. Notwithstanding TIA Section 316(c), such record date shall be
the record date specified in or pursuant to such Board Resolution,
which shall be a date not earlier than the date 30 days prior to
the first solicitation of Holders generally in connection therewith
and not later than the date such solicitation is completed. If
such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before
or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders
for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the
Holders on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture
not later than eleven months after the record date.
(f) 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, any Security
Registrar, any Paying Agent, any Authenticating Agent 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 the
Trustee at its Corporate Trust Office, Attention:
Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office:
114 West 11th Street, Kansas City, Missouri 64105,
Attention: Vice President-Finance.
SECTION 106. Notice to Holders; Waiver. Where this Indenture
provides for notice of any event to Holders of Registered
Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to each such
Holder affected by such event, at his 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 of Registered Securities is
given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders
of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. Any notice
mailed to a Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether
or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such notification
to Holders of Registered Securities as shall be made with the
approval of the Trustee (which approval shall not be unreasonably
withheld) shall constitute a sufficient notification to such
Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301,
where this Indenture provides for notice to Holders of Bearer
Securities of any event, such notice shall be sufficiently given if
published in an Authorized Newspaper in The City of New York and in
such other city or cities as may be specified in such Securities on
a Business Day, such publication to be not later than the latest
date, and not earlier than the earliest date, prescribed for the
giving of such notice. Any such notice shall be deemed to have
been given on the date of such publication or, if published more
than once, on the date of the first such publication.
If by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any
other cause it shall be impracticable to publish any notice to
Holders of Bearer Securities as provided above, then such
notification to Holders of Bearer Securities as shall be given with
the approval of the Trustee (which approval shall not be
unreasonably withheld) shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give
notice by publication to Holders of Bearer Securities as provided
above, nor any defect in any notice so published, shall affect the
sufficiency of such notice with respect to other Holders of Bearer
Securities or the sufficiency of any notice to Holders of
Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in
the English language, except that any published notice may be in an
official language of the country of publication.
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.
SECTION 107. 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 108. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause. In case any provision in
this Indenture or in any Security or coupon 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 110. Benefits of Indenture. Nothing in this
Indenture or in the Securities or coupons, express or implied,
shall give to any Person, other than the parties hereto, any
Security Registrar, any Paying Agent, any Authenticating Agent and
their successors hereunder and the Holders of Securities or
coupons, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 111. Governing Law. This Indenture and the
Securities and coupons shall be governed by and construed in
accordance with the law of the State of New York without reference
to its principles of conflicts of laws. This Indenture is subject
to the provisions of the Trust Indenture Act that, are required to
be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
SECTION 112. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment
date, Stated Maturity or Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any
other provision of this Indenture or of any Security or coupon
other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this
Section), payment of interest or principal (and premium, if any)
need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment
Date, Redemption Date, Repayment Date or sinking fund payment date,
or at the Stated Maturity or Maturity, provided that no interest
shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, Repayment Date,
sinking fund payment date, Stated Maturity or Maturity, as the case
may be.
SECTION 113. Conflict of any Provision of Indenture with
Trust Indenture Act. If and to the extent that any provision of
this Indenture limits, qualifies or conflicts with the duties
imposed by Sections 310 to 318, inclusive, of the Trust Indenture
Act, or conflicts with any provision (an "incorporated provision")
required by or deemed to be included in this Indenture by operation
of such Trust Indenture Act Sections, such imposed duties or
incorporated 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 Trust Indenture Act
provision shall be deemed to apply to this Indenture as so modified
or excluded, as the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities,
if any, of each series and the Bearer Securities, if any, of each
series and related coupons shall be in substantially the forms as
shall be established in one or more indentures supplemental hereto
or approved from time to time by or pursuant to a Board Resolution
in accordance with Section 301, shall have such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture
supplemental hereto, and may have such letters, numbers or other
marks of identification or designation and such legends or
endorsements placed thereon as the Company may deem appropriate and
as are not inconsistent with the provisions of this Indenture, or
as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of
any stock exchange on which the Securities may be listed, or to
conform to usage.
Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these
methods on a steel-engraved border or steel-engraved borders or may
be produced in any other manner, all as determined by the officers
executing such Securities or coupons, as evidenced by their
execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
_______________________, as Trustee
By _____________________
Authorized Signature
SECTION 203. Securities Issuable in Global Form. If
Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, notwithstanding
clause (8) of Section 301 and the provisions of Section 302, any
such global Security shall represent such of the Outstanding
Securities of such series as shall be specified therein (provided
that such Outstanding Securities of such shares shall be of the
same interest rate and maturity) and may provide that it shall
represent the aggregate amount of Outstanding Securities of such
series from time to time endorsed thereon and that the aggregate
amount of Outstanding Securities of such series represented thereby
may from time to time be increased or decreased to reflect
exchanges. Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the
Trustee in such manner and upon instructions given by such Person
or Persons as shall be specified therein or in the Company Order to
be delivered to the Trustee pursuant to Section 303 or Section 304.
Subject to the provisions of Section 303 and, if, applicable,
Section 304, the Trustee shall deliver and redeliver any Security
in permanent global form in the manner and upon instructions given
by the Person or Persons specified therein or in the applicable
Company Order. If a Company Order pursuant to Section 303 or
Section 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery
or redelivery of a Security in global form shall be in writing but
need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply
to any Security represented by a Security in global form if such
Security was never issued and sold by the Company and the Company
delivers to the Trustee the Security in global form together with
written instructions (which need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel) with regard to
the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the
last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of
principal of and any premium and interest on any Security in
permanent global form shall be made to the Person or Persons
specified therein.
Notwithstanding the provisions of Section 309 and except as
provided in the preceding paragraph, the Company, the Trustee and
any agent of the Company and the Trustee shall treat as the Holder
of such principal amount of Outstanding Securities represented by
a permanent global Security (i) in the case of a permanent global
Security in registered form, the Holder of such permanent global
Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear or CEDEL.
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. There
shall be established in one or more Board Resolutions or pursuant
to authority granted by one or more Board Resolutions or, 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 issuance of Securities of any
series, any or all of the following, as applicable (each of which
(except for the matters set forth in clauses (1), (2) and (15)
below), if so provided, may be determined from time to time by the
Company with respect to unissued Securities of the series when
issued from time to time):
(1) the title of the Securities of the series (which
shall distinguish the Securities of such series from all other
series of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date
or dates will be determined or extended, on which the
principal of the Securities of the series shall be payable;
(4) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method by which
such rate or rates shall be determined, the date or dates from
which such interest shall accrue, or the method by which such
date or dates shall be determined, the Interest Payment Dates
on which such interest shall be payable and the Regular Record
Date, if any, for the interest payable on any Registered
Security on any Interest Payment Date, or the method by which
such date or dates shall be determined, and the basis upon
which interest shall be calculated if other than that of a
360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in
addition to The City of New York, where the principal of (and
premium, if any) and interest, if any, on Securities of the
series shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer,
Securities of the series may be surrendered for exchange and
notices or demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(6) the period or periods within which, the price or
prices at which, the Currency in which, and other terms and
conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company,
if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem,
repay or purchase Securities of the series pursuant to any
sinking fund or analogous provision or at the option of a
Holder thereof, and the period or periods within which or the
date or dates on which, the price or prices at which, the
Currency in which, and other terms and conditions upon which
Securities of the series shall be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which any
Registered Securities of the series shall be issuable and, if
other than the denomination of $5,000, the denomination or
denominations in which any Bearer Securities of the series
shall be issuable;
(9) the identity of the Trustee for such Debt Securities
and, if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) the percentage of the principal amount at which such
Debt Securities will be issued and, if other than the
principal amount thereof, the portion of the principal amount
of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant
to Section 502 or the method by which such portion shall be
determined;
(11) if other than Dollars, the Currency in which payment
of the principal of (and premium, if any) or interest, if any,
on the Securities of the series shall be payable or in which
the Securities of the series shall be denominated and the
particular provisions applicable thereto in accordance with,
in addition to or in lieu of any of the provisions of Section
312;
(12) whether the amount of payments of principal of (and
premium, if any) or interest, if any, on the Securities of the
series may be determined with reference to an index, formula
or other method (which index, formula or method may be based,
without limitation, on one or more Currencies, commodities,
equity indices or other indices), and the manner in which such
amounts shall be determined;
(13) whether the principal of (and premium, if any) or
interest, if any, on the Securities of the series are to be
payable, at the election of the Company or a Holder thereof,
in a Currency other than that in which such Securities are
denominated or stated to be payable, the period or periods
within which (including the Election Date), and the terms and
conditions upon which, such election may be made, and the time
and manner of determining the exchange rate between the
Currency in which such Securities are denominated or stated to
be payable and the Currency in which such Securities are to be
so payable, in each case in accordance with, in addition to or
in lieu of any of the provisions of Section 312;
(14) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company with respect
to Securities of the series, whether or not such Events of
Default or covenants are consistent with the Events of Default
or covenants set forth herein;
(15) whether Securities of the series are to be issuable
as Registered Securities, Bearer Securities (with or without
coupons) or both, any restrictions applicable to the offer,
sale or delivery of Bearer Securities and the terms upon which
Bearer Securities of the series may be exchanged for
Registered Securities of the series and vice versa (if
permitted by applicable laws and regulations), whether any
Securities of the series are to be issuable initially in
temporary global form and whether any Securities of the series
are to be issuable in permanent global form with or without
coupons and, if so, whether beneficial owners of interests in
any such permanent global Security may exchange such interests
for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the
manner provided in Section 305, and, if Registered Securities
of the series are to be issuable as a global Security, the
identity of the depository for such series;
(16) the date as of which any Bearer Securities of the
series and any temporary global Security representing
Outstanding Securities of the series shall be dated if other
than the date of original issuance of the first Security of
the series to be issued;
(17) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the
Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the
Regular Record Date for such interest, the manner in which, or
the Person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation
and surrender of the coupons appertaining thereto as they
severally mature, and the extent to which, or the manner in
which, any interest payable on a temporary global Security on
an Interest Payment Date will be paid if other than in the
manner provided in Section 304;
(18) whether Article Fourteen is to be inapplicable to
the Securities of the series and any provisions in
modification of, in addition to or in lieu of any of the
provisions of Article Fourteen;
(19) if the Securities of such series are to be issuable
in definitive form (whether upon original issue or upon
exchange of a temporary Security of such series) only upon
receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and/or terms
of such certificates, documents or conditions;
(20) whether and under what circumstances the Company
will pay Additional Amounts as contemplated by Section 1005 on
the Securities of the series to any Holder who is not a United
States person (including any modification to the definition of
such term) in respect of any tax, assessment or governmental
charge and, if so, whether the Company will have the option to
redeem such Securities rather than pay such Additional Amounts
(and the terms of any such option);
(21) the designation of the initial Exchange Rate Agent,
if any; and
(22) any other terms, conditions, rights and preferences
(or limitations on such rights or preferences) relating to the
series (which terms shall not be inconsistent with the
requirements of the Trust Indenture Act or the provisions of
this Indenture).
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially
identical except, in the case of Registered Securities, as to
denomination and except as may otherwise be provided in or pursuant
to such Board Resolution (subject to Section 303) and set forth in
such Officers' Certificate or in any such indenture supplemental
hereto. Not all Securities of any one series need be issued at the
same time and, unless otherwise provided, a series may be reopened,
without the consent of the Holders, for issuances of additional
Securities of such series.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board
Resolutions, a copy of an appropriate record of such action(s)
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 Securities of such series.
SECTION 302. Denominations. The Securities of each series
shall be issuable in such denominations as shall be specified as
contemplated by Section 301. With respect to Securities of any
series denominated in Dollars, in the absence of any such
provisions with respect to the Securities of any series, the
Registered Securities of such series, other than Registered
Securities issued in global form (which may be of any
denomination), shall be issuable in denominations of $1,000 and any
integral multiple thereof, and the Bearer Securities of such
series, other than Bearer Securities issued in global form (which
may be of any denomination), shall be issuable in a denomination of
$5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be
executed on behalf of the Company by its Chairman, its President or
one of its Vice Presidents, under its corporate seal reproduced
thereon, and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the
Securities or coupons may be the manual or facsimile signatures of
the present or any future such authorized officer and may be
imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers
of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of
any series, together with any coupon appertaining thereto, executed
by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order
shall authenticate and deliver such Securities; provided, however,
that, in connection with its original issuance, no Bearer Security
shall be mailed or otherwise delivered to any location in the
United States; and provided, further, that, unless otherwise
specified with respect to any series of Securities pursuant to
Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such
Bearer Security shall have furnished a certificate in the form set
forth in Exhibit A-1 to this Indenture or such other certificate as
may be specified with respect to any series of Securities pursuant
to Section 301, dated no earlier than 15 days prior to the earlier
of the date on which such Bearer Security is delivered and the date
on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary
Security and this Indenture. If any Security shall be represented
by a permanent global Bearer Security, then, for purposes of this
Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon
exchange of a portion of a temporary global Security shall be
deemed to be delivery in connection with its original issuance of
such beneficial owner's interest in such permanent global Security.
Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and cancelled.
If not all the Securities of any series are to be issued at one
time and if the Board Resolution or supplemental indenture
establishing such series shall so permit, such Company Order may
set forth procedures acceptable to the Trustee for the issuance of
such Securities and determining the terms of particular securities
of such series, such as interest rate, maturity date, date of
issuance and date from which interest shall accrue. In
authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject
to TIA Sections 315(a) through 315(d)) shall be fully protected in
relying upon,
(i) an Opinion of Counsel stating,
(a) that the form or forms of such Securities and any
coupons have been established in conformity with the
provisions of this Indenture;
(b) that the terms of such Securities and any coupons
have been established in conformity with the provisions of
this Indenture; and
(c) that such Securities, together with any coupons
appertaining thereto, when completed by appropriate insertions
and executed and delivered by the Company to the Trustee for
authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with
this Indenture against payment of the purchase price therefor
and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will
constitute legal, valid and binding obligations of the
Company, enforceable in accordance with their terms, subject
to applicable bankruptcy, insolvency, reorganization and other
similar laws of general applicability relating to or affecting
the enforcement of creditors' rights, to general equitable
principles and to such other qualifications as such counsel
shall conclude do not materially affect the rights of Holders
of such Securities and any coupons; and
(ii) an Officers' Certificate stating, to the knowledge
of the signers of such certificate, that no Event of Default
with respect to any of the Securities shall have occurred and
be continuing.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if not all the Securities of any series are to
be issued at one time, it shall not be necessary to deliver an
Officers' Certificate otherwise required pursuant to Section 301 or
a Company Order, or an Opinion of Counsel or an Officers'
Certificate otherwise required pursuant to the preceding paragraph
prior to or at the time of issuance of each Security of such
series, but such order, opinion and certificates, with appropriate
modifications to cover such future issuances, shall be delivered at
or before the time of issuance of the first Security of such
series; provided, however, that any subsequent request by the
Company to the Trustee to authenticate Securities of such series
shall constitute a representation by the Company that as of the
date of such subsequent request the statements made in the
Officers' Certificate delivered upon original issuance pursuant to
Section 3.03(c) are true and correct as of the date of such
subsequent request.
The Trustee shall not be required to authenticate and deliver
any such Securities if the issue of such Securities pursuant to
this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in
a manner which is not reasonably acceptable to the Trustee. Each
Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as
contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless
there appears on such Security or Security to which such coupon
appertains a certificate of authentication substantially in the
form provided for herein duly executed by the Trustee by manual
signature of an authorized signatory, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. 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 310 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. (a) 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, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form or,
if authorized, in bearer form with one or more coupons or without
coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their
execution of such Securities. In the case of Securities of any
series, such temporary Securities may be in global form.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with Section 304(b) or as
otherwise provided in or pursuant to a Board Resolution), if
temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities
of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office
or agency of the Company 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 (accompanied by
any unmatured coupons appertaining thereto) 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 of authorized denominations; provided, however, that no
definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided further that a
definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions
set forth in Section 303. 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.
(b) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(b) shall govern the exchange of
temporary Securities issued in global form. If temporary
Securities of any series are issued in global form, any such
temporary global Security shall, unless otherwise provided therein,
be delivered to the London office of a depositary or common
depositary (the "common Depositary"), for the benefit of Euroclear
and CEDEL, for credit to the respective accounts of the beneficial
owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such
temporary global Security (the "Exchange Date"), the Company shall
deliver to the Trustee definitive Securities, in aggregate
principal amount equal to the principal amount of such temporary
global Security, executed by the Company. On or after the Exchange
Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part,
for definitive Securities without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such
temporary global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such temporary
global Security to be exchanged. The definitive Securities to be
delivered in exchange for any such temporary global Security shall
be in bearer form, registered form, permanent global bearer form or
permanent global registered form, or any combination thereof, as
specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner
thereof; provided, however, that, unless otherwise specified in
such temporary global Security, upon such presentation by the
Common Depositary, such temporary global Security is accompanied by
a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global
Security held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and signed
by CEDEL as to the portion of such temporary global Security held
for its account then to be exchanged, each in the form set forth in
Exhibit A-2 to this Indenture or in such other form as may be
established pursuant to Section 301; and provided further that
definitive Bearer Securities shall be delivered in exchange for a
portion of a temporary global Security only in compliance with the
requirements of Section 303.
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a
temporary global Security shall be exchanged for definitive
Securities of the same series and of like tenor following the
Exchange Date when the account holder instructs Euroclear or CEDEL,
as the case may be, to request such exchange on his behalf and
delivers to Euroclear or CEDEL, as the case may be, a certificate
in the form set forth in Exhibit A-1 to this Indenture (or in such
other form as may be established pursuant to Section 301), dated no
earlier than 15 days prior to the Exchange Date, copies of which
certificate shall be available from the offices of Euroclear and
CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise
specified in such temporary global Security, any such exchange
shall be made free of charge to the beneficial owners of such
temporary global Security, except that a Person receiving
definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of
such definitive Securities in person at the offices of Euroclear or
CEDEL. Definitive Securities in bearer form to be delivered in
exchange for any portion of a temporary global Security shall be
delivered only outside the United States.
Until exchanged in full as provided in this Article Three, the
temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and
delivered hereunder, except that, unless otherwise specified as
contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series
occurring prior to the applicable Exchange Date shall be payable to
Euroclear and CEDEL on such Interest Payment Date upon delivery by
Euroclear and CEDEL to the Trustee of a certificate or certificates
in the form set forth in Exhibit A-2 to this Indenture (or in such
other form as may be established pursuant to Section 301), for
credit without further interest on or after such Interest Payment
Date to the respective accounts of the Persons who are the
beneficial owners of such temporary global Security on such
Interest Payment Date and who have each delivered to Euroclear or
CEDEL, as the case may be, a certificate dated no earlier than 15
days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this
Indenture (or in such other form as may be established pursuant to
Section 301). Notwithstanding anything to the contrary herein
contained, the certifications made pursuant to this paragraph shall
satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of
Section 303 of this Indenture and the interests of the Persons who
are the beneficial owners of the temporary global Security with
respect to which such certification was made will be exchanged for
definitive Securities of the same series and of like tenor on the
Exchange Date or the date of certification if such date occurs
after the Exchange Date, without further act or deed by such
beneficial owners. Except as otherwise provided in this paragraph,
no payments of principal or interest owing with respect to a
beneficial interest in a temporary global Security will be made
unless and until such interest in such temporary global Security
shall have been exchanged for an interest in a definitive Security.
Any interest so received by Euroclear and CEDEL and not paid as
herein provided shall be returned to the Trustee prior to the
expiration of two years after such Interest Payment Date in order
to be repaid to the Company in accordance with Section 1003.
SECTION 305. Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate
Trust Office of the Trustee or in any office or agency of the
Company in a Place of Payment a register for each series of
Securities (the registers maintained in such office or in any such
office or agency of the Company in a Place of Payment being herein
sometimes referred to collectively as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities. The Security
Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. The
Trustee, at its Corporate Trust Office, is hereby initially
appointed "Security Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities on
such Security Register as herein provided. In the event that the
Trustee shall cease to be Security Registrar, it shall have the
right to examine the Security Register at all reasonable times.
Upon surrender for registration of transfer of any Registered
Security of any series at any office or agency in a Place of
Payment for that series, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of
the same series, of any authorized denominations and of a like
aggregate principal amount, bearing a number not contemporaneously
outstanding, and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same
series, of any authorized denomination or denominations and of a
like aggregate principal amount, containing identical terms and
provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any Registered
Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is
entitled to receive. Unless otherwise specified with respect to
any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Registered Securities.
If (but only if) expressly permitted by the applicable Board
Resolution and (subject to Section 303) set forth in the applicable
Officers' Certificate, or in any indenture supplemental hereto,
delivered as contemplated by Section 301, at the option of the
Holder, Bearer Securities of any series may be exchanged for
Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor,
upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured
coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted
exchange may be effected if the Bearer Securities are accompanied
by payment in funds acceptable to the Company in an amount equal to
the face amount of such missing coupon or coupons, or the surrender
of such missing coupon or coupons may be waived by the Company and
the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall
surrender to any Paying Agent any such missing coupon in respect of
which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside
the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency
in a permitted exchange for a Registered Security of the same
series and like tenor after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment
Date or proposed date for payment, as the case may be, and interest
or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the
case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of
this Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall
be exchangeable only as provided in this paragraph. If any
beneficial owner of an interest in a permanent global Security is
entitled to exchange such interest for Securities of such series
and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301 and
provided that any applicable notice provided in the permanent
global Security shall have been given, then without unnecessary
delay but in any event not later than the earliest date on which
such interest may be so exchanged, the Company shall deliver to the
Trustee definitive Securities in aggregate principal amount equal
to the principal amount of such beneficial owner's interest in such
permanent global Security, executed by the Company. On or after
the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered by the Common
Depositary or such other depositary as shall be specified in the
Company Order with respect thereto to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or from time to
time in part, for definitive Securities without charge and the
Trustee shall authenticate and deliver, in exchange for each
portion of such permanent global Security, an equal aggregate
principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged which, unless the
Securities of the series are not issuable both as Bearer Securities
and as Registered Securities, as specified as contemplated by
Section 301, shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however, that
no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities to
be redeemed and ending on the relevant Redemption Date if the
Security for which exchange is requested may be among those
selected for redemption; and provided further that no Bearer
Security delivered in exchange for a portion of a permanent global
Security shall be mailed or otherwise delivered to any location in
the United States. If a Registered Security is issued in exchange
for any portion of a permanent global Security after the close of
business at the office or agency where such exchange occurs on (i)
any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and the opening of business at such office or
agency on the related proposed date for payment of Defaulted
Interest, interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person
to whom interest in respect of such portion of such permanent
global Security is payable in accordance with the provisions of
this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so
required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer, in
form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of
transfer or exchange or redemption 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, 1107 or 1305 not involving
any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Securities of any series during a
period beginning at the opening of business 15 days before the day
of the selection for redemption of Securities of that series under
Section 1103 or Section 1203 and ending at the close of business on
(A) if Securities of the series are issuable only as Registered
Securities, the day of the mailing of the relevant notice of
redemption and (B) if Securities of the series are issuable as
Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Securities of the series are also
issuable as Registered Securities and there is no publication, the
mailing of the relevant notice of redemption, or (ii) to register
the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any
Registered Security to be redeemed in part, the portion thereof not
to be redeemed, or (iii) to exchange any Bearer Security so
selected for redemption except that such a Bearer Security may be
exchanged for a Registered Security of that series and like tenor;
provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer
of or exchange any Security which has been surrendered for
repayment at the option of the Holder, except the portion, if any,
of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities. If any mutilated Security or a Security with a
mutilated coupon appertaining to it is surrendered to the Trustee,
together with, in proper cases, such security or indemnity as may
be required by the Company or the Trustee to save each of them and
any agent of either of them harmless, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and principal amount, containing
identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security or, in
case any such mutilated Security or coupon has become or is about
to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to
the coupons, if any, appertaining to the surrendered Security, pay
such Security or coupon.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or
theft of any Security or coupon, and (ii) such security or
indemnity as may be required by them 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 or coupon has been
acquired by a bona fide purchaser, the Company shall execute and
upon its request the Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Security or in exchange
for the Security to which a destroyed, lost or stolen coupon
appertains (with all appurtenant coupons not destroyed, lost or
stolen), a new Security of the same series and principal amount,
containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen
Security or to the Security to which such destroyed, lost or stolen
coupon appertains, or, in case any such destroyed, lost or stolen
Security or coupon has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a
new Security, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the
Security to which such destroyed, lost or stolen coupon appertains,
pay such Security or coupon.
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 with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or
stolen Security, or in exchange for a Security to which a
destroyed, lost or stolen coupon appertains, shall constitute an
original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security and its coupons, if
any, or the destroyed, lost or stolen coupon 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 and their coupons, if any, duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved;
Option Interest Reset. (a) Except as otherwise specified with
respect to a series of Securities in accordance with the provisions
of Section 301, interest on any Registered Security that is
payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor securities) is registered
at the close of business on the Regular Record Date for such
interest at the office or agency of the Company maintained for such
purpose pursuant to Section 1002; provided, however, that each
installment of interest on any Registered Security may at the
Company's option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto
pursuant to Section 309, to the address of such Person as it
appears on the Security Register or (ii) transfer to an account
maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest may be
made, in the case of a Bearer Security, by transfer to an account
maintained by the payee with a bank located outside the United
States.
Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if any,
payable on any Interest Payment Date will be paid to each of
Euroclear and CEDEL with respect to that portion of such permanent
global Security held for its account by the Common Depositary, for
the purpose of permitting each of Euroclear and CEDEL to credit the
interest received by it in respect of such permanent global
Security to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close
of business (at an office or agency in a Place of Payment for such
series) on any Regular Record Date and before the opening of
business (at such office or agency) on the next succeeding Interest
Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the
Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any
interest on any Registered Security of any series that 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 thereof 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
Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after
such notice is received by the Trustee), and at the same time
the Company shall deposit with the Trustee an amount of money
in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301
for the Securities of such series and except, if applicable,
as provided in Sections 312(b), 312(d) and 312(e) equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or 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 Registered
Securities of such series at his address as it appears in the
Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to
the Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following
clause (2). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for
such series in exchange for a Registered Security of such
series after the close of business at such office or agency on
any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment
of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date
of payment and Defaulted Interest will not be payable on such
proposed date of payment in respect of the Registered Security
issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted
Interest on the Registered Securities of any series in any
other lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such
exchange, if, after notice given by the company to the Trustee
of the proposed payment pursuant to this clause, such manner
of payment shall be deemed practicable by the Trustee.
(b) The provisions of this Section 307(b) may be made
applicable to any series of Securities pursuant to Section 301
(with such modifications, additions or substitutions as may be
specified pursuant to such Section 301). The interest rate (or the
spread or spread multiplier used to calculate such interest rate,
if applicable) on any Security of such series may be reset by the
Company on the date or dates specified on the face of such Security
(each an "Optional Reset Date"). The Company may exercise such
option with respect to such Security by notifying the Trustee of
such exercise at least 50 but not more than 60 days prior to an
Optional Reset Date for such Security. Not later than 40 days
prior to each Optional Reset Date, the Trustee shall transmit, in
the manner provided for in Section 106, to the Holder of any such
Security a notice (the "Reset Notice") indicating whether the
Company has elected to reset the interest rate (or the spread or
spread multiplier used to calculate such interest rate, if
applicable), and if so (i) such new interest rate (or such new
spread or spread multiplier, if applicable) and (ii) the
provisions, if any, for redemption during the period from such
Optional Reset Date to the next Optional Reset Date or if there is
no such next Optional Reset Date, to the Stated Maturity Date of
such Security (each such period a "Subsequent Interest Period"),
including the date or dates on which or the period or periods
during which and the price or prices at which such redemption may
occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to
the Optional Reset Date, the Company may, at its option, revoke the
interest rate (or the spread or spread multiplier used to calculate
such interest rate, if applicable) provided for in the Reset Notice
and establish an interest rate (or a spread or spread multiplier
used to calculate such interest rate, if applicable) that is higher
than the interest rate (or the spread or spread multiplier, if
applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner
provided for in Section 106, notice of such higher interest rate
(or such higher spread or spread multiplier, if applicable) to the
Holder of such Security. Such notice shall be irrevocable. All
Securities with respect to which the interest rate (or the spread
or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to
which the Holders of such Securities have not tendered such
Securities for repayment (or have validly revoked any such tender)
pursuant to the next succeeding paragraph, will bear such higher
interest rate (or such higher spread or spread multiplier, if
applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each
Optional Reset Date at a price equal to the principal amount
thereof plus interest accrued to such Optional Reset Date. In
order to obtain repayment on an Optional Reset Date, the Holder
must follow the procedures set forth in Article Thirteen for
repayment at the option of Holders except that the period for
delivery or notification to the Trustee shall be at least 25 but
not more than 35 days prior to such Optional Reset Date and except
that, if the Holder has tendered any Security for repayment
pursuant to the Reset Notice, the Holder may, by written notice to
the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Optional Extension of Maturity. The provisions
of this Section 308 may be made applicable to any series of
Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such
Section 301). The Stated Maturity of any Security of such series
may be extended at the option of the Company for the period or
periods specified on the face of such Security (each an "Extension
Period") up to but not beyond the date (the "Final Maturity") set
forth on the face of such Security. The Company may exercise such
option with respect to any Security by notifying the Trustee of
such exercise at least 50 but not more than 60 days prior to the
Stated Maturity of such Security in effect prior to the exercise of
such option (the "Original Stated Maturity"). If the Company
exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not
later than 40 days prior to the Original Stated Maturity a notice
(the "Extension Notice") indicating (i) the election of the Company
to extend the Maturity, (ii) the new Stated Maturity, (iii) the
interest rate applicable to the Extension Period and (iv) the
provisions, if any, for redemption during such Extension Period.
Upon the Trustee's transmittal of the Extension Notice, the Stated
Maturity of such Security shall be extended automatically and,
except as modified by the Extension Notice and as described in the
next paragraph, such Security will have the same terms as prior to
the transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before
the Original Stated Maturity of such Security, the Company may, at
its option, revoke the interest rate provided for in the Extension
Notice and establish a higher interest rate for the Extension
Period by causing the Trustee to transmit, in the manner provided
for in Section 106, notice of such higher interest rate to the
Holder of such Security. Such notice shall be irrevocable. All
Securities with respect to which the Stated Maturity is extended
will bear such higher interest rate.
If the Company extends the Maturity of any Security, the
Holder will have the option to elect repayment of such Security by
the Company on the Original Stated Maturity at a price equal to the
principal amount thereof, plus interest accrued to such date. In
order to obtain repayment on the Original Stated Maturity once the
Company has extended the Maturity thereof, the Holder must follow
the procedures set forth in Article Thirteen for repayment at the
option of Holders, except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than
35 days prior to the Original Stated Maturity and except that, if
the Holder has tendered any Security for repayment pursuant to an
Extension Notice, the Holder may by written notice to the Trustee
revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
SECTION 309. Persons Deemed Owners. Prior to due presentment
of a Registered Security for registration of transfer, the Company,
the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Registered Security is registered as
the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any), and (subject to Sections 305
and 307) interest on, such Registered Security and for all other
purposes whatsoever, whether or not such Registered 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.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any
agent of the Company or the Trustee may treat the bearer of any
Bearer Security and the bearer of any coupon as the absolute owner
of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon 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.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Security in global form or
for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Trustee, or
any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by
any depositary, as a Holder, with respect to such global Security
or impair, as between such depositary and owners of beneficial
interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary
(or its nominee) as Holder of such global Security.
SECTION 310. Cancellation. All Securities and coupons
surrendered for payment, redemption, repayment at the option of the
Holder, registration of transfer or exchange or for credit against
any current or future sinking fund payment shall, if surrendered to
any Person other than the Trustee, be delivered to the Trustee, and
any such Securities and coupons and Securities and coupons
surrendered directly to the Trustee for any such purpose shall be
promptly cancelled 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 cancelled by the Trustee. If the
Company shall so acquire any of the Securities, however, such
acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until
the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. Cancelled Securities and
coupons held by the Trustee shall be destroyed by the Trustee and
the Trustee shall deliver a certificate of such destruction to the
Company, unless by a Company Order the Company directs their return
to it.
SECTION 311. Computation of Interest. Except as otherwise
specified as contemplated by Section 301 with respect to Securities
of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year consisting of twelve 30-day
months.
SECTION 312. Currency and Manner of Payments in Respect of
Securities. (a) Unless otherwise specified with respect to any
Securities pursuant to Section 301, with respect to Registered
Securities of any series not permitting the election provided for
in paragraph (b) below or the Holders of which have not made the
election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in paragraph
(d) below, payment of the principal of (and premium, if any) and
interest, if any, on any Registered or Bearer Security of such
series will be made in the Currency in which such Registered
Security or Bearer Security, as the case may be, is payable. The
provisions of this Section 312 may be modified or superseded with
respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect
to Registered Securities of any series that Holders shall have the
option, subject to paragraphs (d) and (e) below, to receive
payments of principal of (and premium, if any) or interest, if any,
on such Registered Securities in any of the Currencies which may be
designated for such election by delivering to the Trustee for such
series of Registered Securities a written election with signature
guarantees and in the applicable form established pursuant to
Section 301, not later than the close of business on the Election
Date immediately preceding the applicable payment date. If a
Holder so elects to receive such payments in any such Currency such
election will remain in effect for such Holder or any transferee of
such Holder until changed by such Holder or such transferee by
written notice to the Trustee for such series of Registered
Securities (but any such change must be made not later than the
close of business on the Election Date immediately preceding the
next payment date to be effective for the payment to be made on
such payment date and no such change of election may be made with
respect to payments to be made on any Registered Security of such
series with respect to which an Event of Default has occurred or
with respect to which the Company has deposited funds pursuant to
Article Four or Article Fourteen or with respect to which a notice
of redemption has been given by the Company or a notice of option
to elect repayment has been sent by such Holder or such
transferee). Any Holder of any such Registered Security who shall
not have delivered any such election to the Trustee of such series
of Registered Securities not later than the close of business on
the applicable Election Date will be paid the amount due on the
applicable payment date in the relevant Currency as provided in
Section 312(a). The Trustee for each such series of Registered
Securities shall notify the Exchange Rate Agent as soon as
practicable after the Election Date of the aggregate principal
amount of Registered Securities for which Holders have made such,
written election.
(c) Unless otherwise specified pursuant to Section 301, if
the election referred to in paragraph (b) above has been provided
for pursuant to Section 301, then, unless otherwise specified
pursuant to Section 301, not later than the fourth Business Day
after the Election Date for each payment date for Registered
Securities of any series, the Exchange Rate Agent will deliver to
the Company a written notice specifying, in the Currency in which
Registered Securities of such series are payable, the respective
aggregate amounts of principal of (and premium, if any) and
interest, if any, on the Registered Securities to be paid on such
payment date, specifying the amounts in such Currency so payable in
respect of the Registered Securities as to which the Holders of
Registered Securities denominated in any Currency shall have
elected to be paid in another currency as provided in paragraph (b)
above. If the election referred to in paragraph (b) above has been
provided for pursuant to Section 301 and if at least one Holder has
made such election, then, unless otherwise specified pursuant to
Section 301, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of
Registered Securities an Exchange Rate Officer's Certificate in
respect of the Dollar or Foreign Currency payments to be made on
such payment date. Unless otherwise specified pursuant to Section
301, the Dollar or Foreign Currency amount receivable by Holders of
Registered Securities who have elected payment in a Currency as
provided in paragraph (b) above shall be determined by the Company
on the basis of the applicable Market Exchange Rate in effect on
the third Business Day (the "Valuation Date") immediately preceding
each payment date, and such determination shall be conclusive and
binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or payable
other than pursuant to an election provided for pursuant to
paragraph (b) above, then with respect to each date for the payment
of principal of (and premium, if any) and interest, if any, on the
applicable Securities denominated or payable in such Foreign
Currency occurring after the last date on which such Foreign
Currency was used (the "Conversion Date"), the Dollar shall be the
Currency of payment for use on each such payment date. Unless
otherwise specified pursuant to Section 301, the Dollar amount to
be paid by the Company to the Trustee of each such series of
Securities and by such Trustee or any Paying Agent to the Holders
of such Securities with respect to such payment date shall be, in
the case of a Foreign Currency other than a currency unit, the
Dollar Equivalent of the Foreign Currency or, in the case of a
currency unit, the Dollar Equivalent of the Currency Unit, in each
case as determined by the Exchange Rate Agent in the manner
provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if
the Holder of a Registered Security denominated in any Currency
shall have elected to be paid in another Currency as provided in
paragraph (b) above, and a Conversion Event occurs with respect to
such elected Currency, such Holder shall receive payment in the
Currency in which payment would have been made in the absence of
such election; and if a Conversion Event occurs with respect to the
Currency in which payment would have been made in the absence of
such election, such Holder shall receive payment in Dollars as
provided in paragraph (d) of this Section 312.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for
each subsequent payment date by converting the specified Foreign
Currency into Dollars at the Market Exchange Rate on the Conversion
Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and subject to the provisions
of paragraph (h) below shall be the sum of each amount obtained by
converting the Specified Amount of each Component Currency into
Dollars at the Market Exchange Rate for such Component Currency on
the Valuation Date with respect to each payment.
(h) For purposes of this Section 312, the following terms
shall have the following meanings:
A "Component Currency" shall mean any Currency which, on
the Conversion Date, was a component currency of the relevant
currency unit, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean
the number of units of such Component Currency or fractions
thereof which were represented in the relevant currency unit,
including, but not limited to, the ECU, on the Conversion
Date. If after the Conversion Date the official unit of any
Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency
shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are
consolidated into a single Currency, the respective Specified
Amounts of such Component Currencies shall be replaced by an
amount in such single Currency equal to the sum of the
respective Specified Amounts of such consolidated Component
Currencies expressed in such single Currency, and such amount
shall thereafter be a Specified Amount and such single
Currency shall thereafter be a Component Currency. If after
the Conversion Date any Component Currency shall be divided
into two or more Currencies, the Specified Amount of such
Component Currency shall be replaced by amounts of such two or
more Currencies, having an aggregate Dollar Equivalent value
at the Market Exchange Rate on the date of such replacement
shall be equal to the Dollar Equivalent of the Specified
Amount of such former Component Currency at the Market
Exchange Rate immediately before such division, and such
amounts shall thereafter be Specified Amounts and such
Currencies shall thereafter be Component Currencies. If,
after the Conversion Date of the relevant currency unit,
including, but not limited to, the ECU, a Conversion Event
(other than any event referred to above in this definition of
"Specified Amount") occurs with respect to any Component
Currency of such currency unit and is continuing on the
applicable Valuation Date, the Specified Amount of such
Component Currency shall, for purposes of calculating the
Dollar Equivalent of the Currency Unit, be converted into
Dollars at the Market Exchange Rate in effect on the
Conversion Date of such Component Currency.
"Election Date" shall mean the Regular Record Date for
the applicable series of Registered Securities or at least 16
days prior to Maturity, as the case may be, or such other date
for any series of Registered Securities as specified pursuant
to clause (13) of Section 301 by which the written election
referred to in Section 312(b) may be made.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar
Equivalent of the Currency Unit, the Market Exchange Rate and
changes in the Specified Amounts as specified above shall be made
in its sole discretion and shall, in the absence of manifest error,
be conclusive for all purposes and irrevocably binding upon the
Company, the Trustee for the appropriate series of Securities and
all Holders of such Securities denominated or payable in the
relevant Currency. The Exchange Rate Agent shall promptly give
written notice to the Company and the Trustee for the appropriate
series of Securities of any such decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency,
the Company will immediately give written notice thereof to the
Trustee of the appropriate series of Securities and to the Exchange
Rate Agent (and such Trustee will promptly thereafter give notice
in the manner provided in Section 106 to the affected Holders)
specifying the Conversion Date. In the event the Company so
determines that a Conversion Event has occurred with respect to the
ECU or any other currency unit in which Securities are denominated
or payable, the Company will immediately give written notice
thereof to the Trustee of the appropriate series of Securities and
to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date and the Specified
Amount of each Component Currency on the Conversion Date. In the
event the Company determines in good faith that any subsequent
change in any Component Currency as set forth in the definition of
Specified Amount above has occurred, the Company will similarly
give written notice to the Trustee of the appropriate series of
Securities and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be
fully justified and protected in relying and acting upon
information received by it from the Company and the Exchange Rate
Agent and shall not otherwise have any duty or obligation to
determine the accuracy or validity of such information independent
of the Company or the Exchange Rate Agent.
SECTION 313. Appointment and Resignation of Successor
Exchange Rate Agent. (a) Unless otherwise specified pursuant to
Section 301, if and so long as the Securities of any series (i) are
denominated in a Currency other than Dollars or (ii) may be payable
in a Currency other than Dollars, or so long as it is required
under any other provision of this Indenture, then the Company will
maintain with respect to each such series of Securities, or as so
required, at least one Exchange Rate Agent. The Company will cause
the Exchange Rate Agent to make the necessary foreign exchange
determinations at the time and in the manner specified pursuant to
Section 301 for the purpose of determining the applicable rate of
exchange and, if applicable, for the purpose of converting the
issued Currency into the applicable payment Currency for the
payment of principal (and premium, if any) and interest, if any,
pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this
Section shall become effective until the acceptance of appointment
by the successor Exchange Rate Agent as evidenced by a written
instrument delivered to the Company and the Trustee of the
appropriate series of Securities accepting such appointment
executed by the successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the
office of the Exchange Rate Agent for any cause, with respect to
the Securities of one or more series, the Company, by or pursuant
to a Board Resolution, shall promptly appoint a successor Exchange
Rate Agent or Exchange Rate Agents with respect to the Securities
of that or those series (it being understood that any such
successor Exchange Rate Agent may be appointed with respect to the
Securities of one or more or all of such series and that, unless
otherwise specified pursuant to Section 301, at any time there
shall only be one Exchange Rate Agent with respect to the
Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated
and/or payable in the same Currency).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This
Indenture shall upon Company Request cease to be of further effect
with respect to any series of Securities specified in such Company
Request (except as to any surviving rights of registration of
transfer or exchange of Securities of such series herein expressly
provided for and any right to receive Additional Amounts, as
provided in Section 1005), and the Trustee, upon receipt of a
Company Order, and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 305,
(ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306, (iii) coupons appertaining to
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons of
such series 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 Securities of such series and, in the case of
(i) or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds for the purpose an amount, in the Currency in which the
Securities of such series are payable, sufficient to pay and
discharge the entire indebtedness on such Securities and such
coupons 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 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 as to such
series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 606,
the obligations of the Trustee to any Authenticating Agent under
Section 611 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 Funds. Subject to the
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, the coupons and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting
as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium, if any)
and interest for whose payment such money has been deposited with
or received by the Trustee, but such money need not be segregated
from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default", wherever
used herein with respect to any Securities of any series, means any
one of the following events (whatever the reason for such Event of
Default and whether or not it shall be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any
administrative or governmental body) unless it is either
inapplicable to a particular series or it is specifically deleted
or modified in or pursuant to the supplemental indenture or Board
Resolution establishing such series of Securities or in the form of
Security for such series:
(1) default in the payment of any interest upon any
Security of that series or of any coupon appertaining thereto,
when such interest, or coupon 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 when it
becomes due and payable at its Maturity; or
(3) default in the deposit of any sinking fund payment
when and as due by the terms of any Security of that series;
or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture with
respect to any Security of that series (other than a covenant
or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of
the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of
it or for all or substantially all of its property, or
(D) makes a general assignment for the benefit of
its creditors; or
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company in an
involuntary case,
(B) appoints a Custodian of the Company or for all
or substantially all of its property, or
(C) orders the liquidation of the Company, and the
order or decree remains unstayed and in effect for 90
consecutive days; or
(7) any other Event of Default provided with respect to
Securities of that series.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or State law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator or
other similar official under any Bankruptcy Law.
Unless otherwise specified in the Board Resolutions
establishing the terms of a series of Securities, an Event of
Default with respect to one series under Clauses (1), (2), (3), (4)
or (7) of this Section shall not constitute an Event of Default
with respect to any other series of Securities.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of
any series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than
25% in principal amount of the Outstanding Securities of that
series may declare the principal (or, if any Securities of that
series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal as may be specified in
the terms thereof) of all 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 the Holders), and upon any such
declaration such principal or specified portion thereof shall
become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders
of a majority in principal amount of the Outstanding Securities of
that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee
a sum sufficient to pay in the Currency in which the
Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such
series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)):
(A) all overdue installments of interest on all
Outstanding Securities of that series and any related
coupons,
(B) all unpaid principal of (and premium, if any,
on) any Outstanding Securities of that series which has
become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates
borne by or provided for in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest at
the rate or rates borne by or provided for in such
Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal of
(or premium, if any) or interest on Securities of that series
which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section
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 installment of
interest on any Security of any series and any related coupon
when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security of any series at its
Maturity,
then the Company will, upon demand of the Trustee, pay to the
Trustee, for the benefit of the Holders of such Securities of such
series and coupons, the whole amount then due and payable on such
Securities and coupons for principal (and premium, if any) and
interest, with interest upon any overdue principal (and premium, if
any) and, to the extent that payment of such interest shall be
legally enforceable, upon any overdue installments of interest, at
the rate or rates borne by or provided for in such Securities, and,
in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, may in its discretion (but shall not be required to)
institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final
decree, and may enforce the same against the Company or any other
obligor upon such Securities of such series and collect the moneys
adjudged or decreed to be payable in the manner provided by law out
of the property of the Company or any other obligor upon such
Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion
(but shall not be required to) proceed to protect and enforce its
rights and the rights of the Holders of Securities of such series
and any related coupons 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 the property of the Company or of
such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Securities of any series shall then be
due and payable as therein expressed or by declaration or otherwise
and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal, premium, if
any, or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or
such lesser amount as may be provided for in the Securities of
such series, of principal (and premium, if any) and interest
owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute
the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial
proceeding is hereby authorized by each Holder of Securities of
such series and coupons to make such payments to the Trustee, and
in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount
due to 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 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of
any Holder of a Security or coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or
coupons or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder of a Security
or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. All rights of action and claims under this
Indenture or any of the Securities or coupons may be prosecuted and
enforced by the Trustee without the possession of any of the
Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment
of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders of the Securities and coupons in respect of
which such judgment has been recovered.
SECTION 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 or coupons, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 606;
SECOND: To the payment of the amounts then due and
unpaid upon the Securities and coupons for principal (and
premium, if any) and interest 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
aggregate amounts due and payable on such Securities and
coupons for principal (and premium, if any), and interest,
respectively; and
THIRD: To the payment of the remainder, if any, to the
Company or any other Person or Persons entitled thereto.
SECTION 507. Limitation on Suits. No Holder of any Security
of any series or any related coupon shall have any right to
institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to
the Securities of that series;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after 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 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 or coupon
shall have the right which is absolute and unconditional to receive
payment of the principal of (and premium, if any) and (subject to
Sections 305 and 307) interest on, such Security or payment of such
coupon on the respective due dates expressed in such Security or
coupon (or, in the case of redemption, on the Redemption Date) and
to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the
Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and
such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder,
then and in every such case the Company, the Trustee and the
Holders of Securities and coupons shall, subject to any
determination in such proceeding, 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 or coupons in the
last paragraph of Section 306, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders of Securities or
coupons is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, 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 Security or coupon
to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders of Securities or
coupons, as the case may be.
SECTION 512. Control by Holders of Securities. The Holders
of a majority in principal amount of the Outstanding Securities of
any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee
with respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture,
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction,
and
(3) the Trustee need not take any action which might
involve it in personal liability or be unjustly prejudicial to
the Holders of Securities of such series not consenting.
SECTION 513. Waiver of Past Defaults. The Holders of not
less than a majority in principal amount of the outstanding
Securities of any series may on behalf of the Holders of all the
Securities of such series and any related coupons 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 any related
coupon, 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.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other default or Event of Default
or impair any right consequent thereon.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to the Securities
of any series, the Trustee shall transmit in the manner and to the
extent provided in TIA Section 313(c), notice of such default
hereunder known to the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a
default in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or in the payment of any
sinking or purchase fund installment with respect to the Securities
of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of
the Securities of such series and any related coupons; and provided
further that in the case of any default or breach of the character
specified in Section 501(4) with respect to the Securities and
coupons of such series, no such notice to Holders shall be given
until at least 60 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 the Securities of such series.
SECTION 602. Certain Rights of Trustee. Subject to the
provisions of TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
coupon or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order (other than delivery of any Security, together
with any coupons appertaining thereto, to the Trustee for
authentication and delivery pursuant to Section 303 which
shall be sufficiently evidenced as provided therein) and any
resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) 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;
(4) 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;
(5) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at
the request or direction of any of the Holders of Securities
of any series or any related coupons pursuant to this
Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, coupon or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by
agent or attorney, provided that such investigation shall be
conducted during normal business hours of the Company, upon
prior notice and subject to the terms of such confidentiality
arrangements as the Company and the Trustee may reasonably
agree upon;
(7) 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;
and
(8) 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 or rights or
powers conferred upon it by this Indenture.
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 603. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities,
except the Trustee's certificates of authentication, and in any
coupons shall be taken as the statements of the Company, and
neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture
or of the Securities or coupons, except that the Trustee represents
that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities
or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying
Agent, Security Registrar, Authenticating Agent or any other agent
of the Company, in its individual or any other capacity, may become
the owner or pledgee of Securities and coupons and, subject to TIA
Sections 310(b) and 311, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Paying Agent,
Security Registrar. Authenticating Agent or such other agent.
SECTION 605. 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 606. Compensation and Reimbursement. The Company
agrees:
(1) to pay to the Trustee from time to time such
compensation for all services rendered by it hereunder as has
been agreed upon in writing by the Company and the Trustee
(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust)
(2) 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 for, and to hold it
harmless against, any loss, liability or expense incurred
without negligence or bad faith on its own 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.
As security for performance of the obligations of the Company
under this Section, the Trustee shall have a claim prior to 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 (or premium, if any) or interest on particular
Securities or any coupons. If the Trustee incurs expenses or
renders services after an Event of Default specified in Section
501(5) or Section 501(6), such expenses and the compensation for
such services are intended to constitute expenses of administration
under any Bankruptcy Law.
SECTION 607. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be eligible
to act as Trustee under TIA Section 31(a)(1) and shall have a
combined capital and surplus of at least $50,000,000. If such
corporation publishes reports of condition at least annually,
pursuant to law or the requirements of Federal, State, Territorial
or District of Columbia supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus
of such 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.
SECTION 608. 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 609.
(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 an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities
of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions
of TIA Section 310(b) after written request therefor by the
Company or by any Holder of a Security who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
607 and shall fail to resign after written request therefor by
the Company or by any Holder of a Security who has been a bona
fide Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board
Resolution may remove the Trustee and appoint a successor Trustee
with respect to all Securities, or (ii) subject to TIA Section
315(e), any Holder of a Security who has been a bona fide Holder of
a Security for at least six months may, on behalf of 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 or pursuant to 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). 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, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of Securities and
accepted appointment in the manner hereinafter provided, any Holder
of a Security who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to 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 to the Holders of Securities of such
series in the manner provided for notices to the Holders of
Securities in Section 106. 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 609. 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 shall
execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on 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.
(c) Upon reasonable request of any such successor Trustee,
the Company shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor Trustee
all such rights, powers and trusts referred to in paragraph (a) or
(b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 610. 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 of 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 or coupons 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 or coupons so authenticated with the same effect as
if such successor Trustee had itself authenticated such Securities
or coupons. In case any Securities or coupons shall not have been
authenticated by such predecessor Trustee, any such successor
Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the
full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any
time when any of the Securities remain Outstanding, the Trustee may
appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series
issued upon exchange, registration of transfer or partial
redemption thereof, 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. Any such appointment shall be evidenced by an
instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to
the Company. 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 and in good standing under the laws of
the United States of America or of any State or the District of
Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than
$5,000,000 and subject to supervision or examination by Federal or
State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or the requirements of
the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. In case 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 for any series of Securities may at
any time resign by giving written notice of resignation to the
Trustee for such series and to the Company. The Trustee for any
series of Securities may at any time terminate the agency of an
Authenticating Agent by giving written notice of termination 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 for
such series may appoint a successor Authenticating Agent which
shall be acceptable to the Company and shall give notice of such
appointment to all Holders of Securities of the series with respect
to which such Authenticating Agent will serve in the manner
provided for in Section 106. 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 Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation including reimbursement of its
reasonable expenses 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 therein
referred to in the within-mentioned Indenture.
___________________ as Trustee
By____________________________
as Authenticating Agent
By____________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be
held accountable by reason of the disclosure of any information as
to the names and addresses of the Holders of Securities in
accordance with TIA Section 312, regardless of the source from
which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to
a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee. Within 60 days after May 15
of each year commencing with the first May 15 after the first
issuance of Securities pursuant to this Indenture, the Trustee
shall transmit to all Holders of Securities, in the manner and to
the extent provided in TIA Section 313(c), a brief report dated as
of such May 15 if required by TIA Section 313(a).
SECTION 703. 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 such Sections, then it will 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; and
(3) transmit by mail to the Holders of Securities,
within 30 days after the filing thereof with the Trustee, in
the manner and to the extent provided in TIA Section 313(c),
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.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms. The Company shall not consolidate with or merge into any
other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(1) the corporation (if other than the Company) formed
by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer the
properties and assets of the Company substantially as an
entirety shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form
reasonably 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 of every covenant of
this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction,
no Event of Default, and no event which, after notice or lapse
of time, or both, would become an Event of Default, shall have
happened and be continuing; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance or transfer and
such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such
transaction have been complied with.
This Section shall only apply to a merger or consolidation in
which the Company is not the surviving corporation and to
conveyances and transfers by the Company as transferor.
SECTION 802. Successor Person Substituted. Upon any
consolidation by the Company with or merger by the Company into any
other corporation, or any conveyance or transfer of the properties
and assets of the Company substantially as an entirety in
accordance with Section 801, the successor corporation formed by
such consolidation or into which the Company is merged or the
successor Person to which such conveyance or transfer 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 had been named as the Company herein; and in
the event of any such conveyance or transfer, the Company (which
term shall for this purpose mean the Person named as the "Company"
in the first paragraph of this Indenture or any successor which
shall theretofore become such in the manner described in Section
801) shall be discharged from all obligations and covenants under
this Indenture and the Securities and coupons and may be dissolved
and liquidated (and, the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same).
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders of Securities or
coupons, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form
reasonably 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
contained; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities and
any related coupons (and if such covenants are to be for the
benefit of less than all series of Securities, stating that
such covenants are being included solely for the benefit of
such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities (and
if such Events of Default are to be for the benefit of less
than all series of Securities, stating that such Events of
Default are being included solely for the benefit of such
series); provided, however, that in respect of any such
additional Events of Default such supplemental indenture may
provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case
of other defaults) or may provide for an immediate enforcement
upon such default or may limit the remedies available to the
Trustee upon such default or may limit the right of the
Holders of a majority in aggregate principal amount of that or
those series of Securities to which such additional Events of
Default apply to waive such default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable
as to principal, to change or eliminate any restrictions on
the payment of principal of or any premium or interest on
Bearer Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of
other authorized denominations or to permit or facilitate the
issuance of Securities in uncertificated form, provided that
any such action shall not adversely affect the interests of
the Holders of Securities of any series or any related coupons
in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall
become effective only when there is no Security Outstanding of
any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision;
or
(6) to secure the Securities pursuant to the
requirements of Section 1006, or otherwise; or
(7) to establish the form or terms of Securities of any
series and any related coupons 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 facilitate the administration of the trusts
hereunder by more than one Trustee; or
(9) to close this Indenture with respect to the
authentication and delivery of additional series of
Securities, 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 or any related coupons in
any material respect; or
(10) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the defeasance and discharge of any series of
Securities pursuant to Sections 401, 1402 and 1403; provided
that any such action shall not adversely affect the interests
of the Holders of Securities of such series and any related
coupons or any other series of Securities 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
principal amount of all Outstanding Securities of any series
affected by such supplemental indenture, by Act of said Holders
delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to 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 such series of
Securities and any related coupons under this indenture; provided,
however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security of the series
affected thereby:
(1) change the Stated Maturity of the principal of (or
premium, if any, on) or any installment of principal of or
interest on, any Security of the series, or reduce the
principal amount thereof or the rate of interest thereon or
any Additional Amounts payable in respect thereof, or any
premium payable upon the redemption thereof, or change any
obligation of the Company to pay Additional Amounts
contemplated by Section 1005 (except as contemplated by
Section 801(1) and permitted by Section 901(1)), 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 the amount thereof provable in bankruptcy pursuant to
Section 504, or adversely affect any right of repayment at the
option of the Holder of any Security, or change any Place of
Payment where, or the Currency in which, any Security or any
premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the
case of redemption or repayment at the option of the Holder,
on or after the Redemption Date or the Repayment Date, as the
case may be), 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 with
respect to such series (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the
requirements of Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1007, except to increase any such
percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived in respect of any
series of Securities without the consent of the Holder of each
Outstanding Security of such series affected thereby.
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.
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.
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 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 and of any coupon
appertaining thereto shall be bound thereby.
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.
SECTION 906. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to this
Article may, and shall, if required by the Trustee, bear a notation
in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, 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 such series of
Securities, any coupons appertaining thereto and this Indenture.
Unless otherwise specified with respect to Securities of any series
pursuant to Section 301, at the option of the Company, all payments
of principal may be paid by check to the registered Holder of the
Registered Security or other person entitled thereto against
surrender of such Security. Unless otherwise specified as
contemplated by Section 301 with respect to any series of
Securities, any interest due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender of
the several coupons for such interest installments as are evidenced
thereby as they severally mature.
SECTION 1002. Maintenance of Office or Agency. If the
Securities of a series are issuable only as Registered Securities,
the Company shall maintain in each Place of Payment for that 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. If Securities of a series are issuable as Bearer
Securities, the Company will maintain (A) in The City of New York,
an office or agency where any Registered Securities of that series
may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for
exchange, where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be
served and where Bearer Securities of that series and related
coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not
otherwise), (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities of
that series and related coupons may be presented and surrendered
for payment; provided, however, that if the Securities of that
series are listed on any stock exchange located outside the United
States and such stock exchange shall so require, the Company will
maintain a Paying Agent for the Securities of that series in any
other required city located outside the United States, as the case
may be, so long as the Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located outside the
United States an office or agency where any Registered Securities
of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the
location, and any change in the location, of each 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, except that Bearer Securities of that series and the
related coupons may be presented and surrendered for payment at the
offices specified in the Security, in London, England, and the
Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands, and the
Company hereby appoints the Trustee its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or
interest on Bearer Securities shall be made at any office or agency
of the Company in the United States or by check mailed to any
address in the United States or by transfer to an account
maintained with a bank located in the United States; provided,
however, that, if the Securities of a series are payable in
Dollars, payment of principal of and any premium and interest on
any Bearer Security shall be made at the office of the Company's
Paying Agent in The City of New York, if (but only if) payment in
Dollars of the full amount of such principal, premium or interest,
as the case may be, at all offices or agencies outside the United
States maintained for the purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate one or more
offices or agencies where the Securities of one or more series may
be presented or surrendered for any or all of such purposes, and
may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in
accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of
any change in the location of any such other office or agency.
Unless otherwise specified with respect to any Securities as
contemplated by Section 301 with respect to a series of Securities,
the Company hereby designates as a Place of Payment for each series
of Securities the office or agency of the Trustee in The City of
New York and initially appoints the Trustee at its Corporate Trust
Office in The City of New York as Paying Agent and as its agent to
receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any
series (i) are denominated in a Currency other than Dollars or (ii)
may be payable in a Currency other than Dollars, or so long as it
is required under any other provision of the Indenture, then the
Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent.
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 any Securities and any related
coupons, 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 the Securities of
such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e))
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, and will promptly notify
the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, on or
before 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 (in the Currency described in the preceding paragraph)
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 and
(unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent (other than the
Trustee) for any series of Securities 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) and interest on Securities
of such 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 such
series) in the making of any payment of principal of (or
premium, if any) or interest on the Securities of such series;
and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with
respect to such sums.
Except as otherwise provided in the Securities of any series,
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 upon 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 of such principal of (and
premium, if any) or interest on any Security, without interest
thereon, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease, provided, however, that the
Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper, notice that such money
remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 1004. Statement as to Compliance. The Company will
deliver to the Trustee, within 120 days after the end of each
fiscal year, a brief certificate from the principal executive
officer, principal financial officer or principal accounting
officer to his or her knowledge of the Company's compliance with
all conditions and covenants under this Indenture.
SECTION 1005. Additional Amounts. If any Securities of a
series provide for the payment of Additional Amounts, the Company
will pay to the Holder of any Security of such series or any coupon
appertaining thereto such Additional Amounts as may be specified as
contemplated by Section 301. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any
premium or interest on, or in respect of, any Security of any
series or payment of any related coupon or the net proceeds
received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of
Additional Amounts provided for by the terms of such series
established pursuant to Section 301 to the extent that, in such
context, Additional Amounts are, were or would be payable in
respect thereof pursuant to such terms and express mention of the
payment of Additional Amounts (if applicable) in any provisions
hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301,
if the Securities of a series provide for the payment of Additional
Amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Securities (or if the Securities of
that series will not bear interest prior to Maturity, the first day
on which a payment of principal and any premium is made), and at
least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to
the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's principal
Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent
or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made
to Holders of Securities of that series or any related coupons who
are not United States persons without withholding for or on account
of any tax, assessment or other governmental charge described in
the Securities of the series. If any such withholding shall be
required, then such Officers' Certificate shall specify by country
the amount, if any, required to be withheld on such payments to
such Holders of Securities of that series or related coupons and
the Company will pay to the Trustee or such Paying Agent the
Additional Amounts required by the terms of such Securities. In
the event that the Trustee or any Paying Agent, as the case may be,
shall not so receive the abovementioned certificate, then the
Trustee or such Paying Agent shall be entitled to (i) assume that
no such withholding or deduction is required with respect to any
payment of principal or interest with respect to any Securities of
a series or related coupons until it shall have received a
certificate advising otherwise and (ii) make all payments of
principal and interest with respect to the Securities of a series
or related coupons without withholding or deductions until
otherwise advised. The Company covenants to indemnify the Trustee
and any Paying Agent for, and to hold them harmless against, any
loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
SECTION 1006. Limitation on Liens on Stock or Indebtedness of
Significant Subsidiaries. The Company will not nor will it permit
any Significant Subsidiary to create, assume, incur or suffer to
exist any Lien upon any stock or indebtedness, whether owned on the
date of this Indenture or hereafter acquired, of any Significant
Subsidiary (other than a Significant Subsidiary, the stock or
indebtedness of which at the date of this Indenture is presently
subject to a Lien or is required to be subject to a Lien) to secure
any Obligation (other than the Securities) of the Company, any
Subsidiary or any other Person without in any such case making
effective provision whereby all of the Outstanding Securities shall
be directly secured equally and ratably with such Obligation,
excluding, however, from the operation of the foregoing provisions
of this Section 1006 any Lien upon stock or indebtedness of any
corporation existing at the time such corporation becomes a
Significant Subsidiary or existing or created upon stock or
indebtedness of a Significant Subsidiary at the time of acquisition
of such stock or indebtedness and any extension, renewal or
replacement (or successive extensions, renewals or replacements) in
whole or in part of any such Lien; provided, however, that the
principal amount of the Obligation secured thereby shall not exceed
the principal amount of the Obligation so secured at the time of
such extension, renewal or replacement; and provided, further, that
such Lien shall be limited to all or such part of the stock or
indebtedness which secured the Lien so extended, renewed or
replaced.
SECTION 1007. Waiver of Certain Covenants. The Company may
omit in any particular instance to comply with any term, provision,
or condition set forth in Section 1006 if before or after the time
for such compliance the Holders of at least a majority in principal
amount of all Outstanding Securities, by Act of such Holders, 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.
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 or pursuant to a Board Resolution. In case of any redemption at
the election of the Company of less than all of the Securities of
any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such
series to be redeemed. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this
Indenture, the Company 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 any series issued on
the same day with the same terms are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series issued on such date with the same terms
not previously called for redemption or reacquired by the Company,
by lottery or such other method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption
of portions of the principal amount of Securities of such series;
provided, however, that no such partial redemption shall reduce the
portion of the principal amount of a Security not redeemed to less
than the minimum authorized denomination for Securities of that
series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) 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 Security redeemed or to
be redeemed only in part, to the portion of the principal amount of
such Security which has been or is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption
shall be given in the manner provided in Section 106, not less than
30 days nor more than 60 days prior to the Redemption Date, unless
a shorter period is specified by the terms of such series
established pursuant to Section 301, to each Holder of Securities
to be redeemed, but failure to give such notice in the manner
herein provided to the Holder of any Security designated for
redemption as a whole or in part, or any defect in the notice to
any such Holder, shall not affect the validity of the proceedings
for the redemption of any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder
receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the
Redemption Date payable as provided in Section 1106, if any,
and Additional Amounts, if any,
(3) if less than all Outstanding Securities of any
series are to be redeemed, the identification (and, in the
case of partial redemption, the principal amount) of the
particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall state that on
and after the Redemption Date, upon surrender of such
Security, the Holder will receive, without a charge, a new
Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and
accrued interest to the Redemption Date payable as provided in
Section 1106, if any, will become due and payable upon each
such Security, or the portion thereof, to be redeemed and, if
applicable, that interest thereon shall cease to accrue on and
after said date,
(6) the Place or Places of Payment where such
Securities, together in the case of Bearer Securities with all
coupons appertaining thereto, if any, maturing after the
Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if such
is the case,
(8) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for
redemption must be accompanied by all coupons maturing
subsequent to the date fixed for redemption or the amount of
any such missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to
the Company, the Trustee for such series and any Paying Agent
is furnished, and
(9) if Bearer Securities of any series are to be
redeemed and any Registered Securities of such series are not
to be redeemed, and if such Bearer Securities may be exchanged
for Registered Securities not subject to redemption on this
Redemption Date pursuant to Section 305 or otherwise, the last
date, as determined by the Company, on which such exchanges
may be made.
Notice of redemption of Securities to be redeemed 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, which it may not do in the case of a sinking fund payment
under Article Twelve, segregate and hold in trust as provided in
Section 1003) an amount of money in the Currency in which the
Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d)
and 312(e)) sufficient to pay on the Redemption Date the Redemption
Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions
thereof 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 in the Currency in which
the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d)
and 312(e)) (together with accrued interest, if any, to the
Redemption Date) and from and after such date (unless the Company
shall default in the payment of the Redemption Price and accrued
interest) such Securities shall, if the same were interest-bearing,
cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to
the extent provided below, shall be void. Upon surrender of any
such Security for redemption in accordance with said notice,
together with all coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date, provided, however, that installments
of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or
agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender
of coupons for such interest, and provided further that
installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable
(but without interest thereon, unless the Company shall default in
the payment thereof) to the Holders of such Securities, on one or
more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and
the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the
Redemption Date, such Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there be furnished
to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent
any such missing coupon in respect of which a deduction shall have
been made from the Redemption Price, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency
located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and 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 only in part (pursuant to the provisions of
this Article or of Article Twelve) shall be surrendered at a Place
of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or the 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, 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.
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 such 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 mandatory 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 may, in satisfaction of all or any part of
any mandatory sinking fund payment with respect to the Securities
of a series, (1) deliver Outstanding Securities of such series
(other than any previously called for redemption) together in the
case of any Bearer Securities of such series with all unmatured
coupons appertaining thereto and/or (2) apply as a credit
Securities of such 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, or repaid at the option
of the Holders thereof pursuant to the terms of such Securities, as
provided for by the terms of such Securities; provided that such
Securities so delivered or applied as a credit have not been
previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the applicable
Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such
mandatory 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 any series, the Company will deliver to the Trustee
an Officers' Certificate specifying the amount of the next ensuing
mandatory sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be
satisfied by payment of cash in the Currency in which the
Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d)
and 312(e)) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series
pursuant to Section 1202, and the optional amount, if any, to be
added in cash to the next ensuing mandatory sinking fund payment,
and will also deliver to the Trustee any Securities to be so
delivered and credited. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing
mandatory sinking fund payment, the Company shall thereupon be
obligated to pay the amount therein specified. Not more than 60
days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment
date in the manner specified in Section 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.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of
Securities of any series before their Stated Maturity at the option
of Holders thereof shall be made in accordance with the terms of
such Securities and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with
this Article.
SECTION 1302. Repayment of Securities. Securities of any
series subject to repayment in whole or in part at the option of
the Holders thereof will, unless otherwise provided in the terms of
such Securities, be repaid at a price equal to the principal amount
thereof, together with interest, if any, thereon accrued to the
Repayment Date specified in or pursuant to the terms of such
Securities. The Company covenants that on or before the Repayment
Date it will deposit with the Trustee or with a Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and
hold in trust as provided in Section 1003) an amount of money in
the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal
(or, if so provided by the terms of the Securities of any series,
a percentage of the principal) of, and (except if the Repayment
Date shall be an Interest Payment Date) accrued interest on, all
the Securities or portions thereof, as the case may be, to be
repaid on such date.
SECTION 1303. Exercise of Option. Securities of any series
subject to repayment at the option of the Holders thereof will
contain an "Option to Elect Repayment" form on the reverse of such
Securities. To be repaid at the option of the Holder, any Security
so providing for such repayment, with the "Option to Elect
Repayment" form on the reverse of such Security duly completed by
the Holder (or by the Holder's attorney duly authorized in
writing), must be received by the Company at the Place of Payment
therefor specified in the terms of such Security (or at such other
place or places of which the Company shall from time to time notify
the Holders of such Securities) not earlier than 45 days nor later
than 30 days prior to the Repayment Date. If less than the entire
principal amount of such Security is to be repaid in accordance
with the terms of such Security, the principal amount of such
Security to be repaid, in increments of the minimum denomination
for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the
Holder for the portion of the principal amount of such Security
surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the
option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such
Security would be less than the minimum authorized denomination of
Securities of the series of which such Security to be repaid is a
part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become
Due and Payable. If Securities of any series providing for
repayment at the option of the Holders thereof shall have been
surrendered as provided in this Article and as provided by or
pursuant to the terms of such Securities, such Securities or the
portions thereof, as the case may be, to be repaid shall become due
and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the
Company shall default in the payment of such Securities on such
Repayment Date) such Securities shall, if the same were interest-
bearing, cease to be bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be repaid,
except to the extent provided below, shall be void. Upon surrender
of any such Security for repayment in accordance with such
provisions, together with all coupons, if any, appertaining thereto
maturing after the Repayment Date, the principal amount of such
Security so to be repaid shall be paid by the Company, together
with accrued interest, if any, to the Repayment Date; provided,
however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section
1002) and, unless otherwise specified pursuant to Section 301, only
upon presentation and surrender of such coupons, and provided
further that, in the case of Registered Securities, installments of
interest, if any, whose Stated Maturity is on or prior to the
Repayment Date shall be payable (but without interest thereon,
unless the Company shall default in the payment thereof) to the
Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment
Date, such Security may be paid after deducting from the amount
payable therefor as provided in Section 1302 an amount equal to the
face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the
Trustee if there be furnished to them such security or indemnity as
they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency
located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such
principal amount (together with interest, if any, thereon accrued
to such Repayment Date) shall, until paid, bear interest from the
Repayment Date at the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of
any Registered Security which is to be repaid in part only, the
Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge and
at the expense of the Company, a new Registered Security or
Securities of the same series, of any authorized denomination
specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security
so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance. Unless pursuant to
Section 301 provision is made for the inapplicability of either or
both of (a) defeasance of the Securities of or within a series
under Section 1402 or (b) covenant defeasance of the Securities of
or within a series under Section 1403, then the provisions of such
Section or Sections, as the case may be, together with the other
provisions of this Article (with such modifications thereto as may
be specified pursuant to Section 301 with respect to any
Securities), shall be applicable to such Securities and any coupons
appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any
coupons appertaining thereto, elect to have Section 1402 (if
applicable) or Section 1403 (if applicable) be applied to such
Outstanding Securities and any coupons appertaining thereto upon
compliance with the conditions set forth below in this Article.
SECTION 1402. Defeasance and Discharge. Upon the Company's
exercise of the above option applicable to this Section with
respect to any Securities of or within a series, the Company shall
be deemed to have been discharged from its obligations with respect
to such Outstanding Securities and any coupons appertaining thereto
on the date the conditions set forth in Section 1404 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance
means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such Outstanding Securities
and any coupons appertaining thereto, which shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 1405
and the other Sections of this Indenture referred to in clauses (A)
and (B) of this Section, and to have satisfied all its other
obligations under such Securities and any coupons appertaining
thereto and this Indenture insofar as such Securities and any
coupons appertaining thereto are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the
rights of Holders of such Outstanding Securities and any coupons
appertaining thereto to receive, solely from the trust fund
described in Section 1404 and as more fully set forth in such
Section, payments in respect of the principal of (and premium, if
any) and interest, if any, on such Securities and any coupons
appertaining thereto when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 305,
306, 1002 and 1003 and with respect to the payment of Additional
Amounts, if any, on such Securities as contemplated by Section
1005, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article. Subject to compliance with
this Article Fourteen, the Company may exercise its option under
this Section notwithstanding the prior exercise of its option under
Section 1403 with respect to such Securities and any coupons
appertaining thereto.
SECTION 1403. Covenant Defeasance. Upon the Company's
exercise of the above option applicable to this Section with
respect to any Securities of or within a series, the Company shall
be released from its obligations under Section 1006, and, if
specified pursuant to Section 301, its obligations under any other
covenant, with respect to such Outstanding Securities and any
coupons appertaining thereto on and after the date the conditions
set forth in Section 1404 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining
thereto shall thereafter be deemed to be not "Outstanding" for the
purpose of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with
Section 1006, or such other covenant, but shall continue to be
deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any coupons appertaining thereto, the
Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such
Section or such other covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such Section or
such other covenant or by reason of reference in any such Section
or such other covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a
default or an Event of Default under Section 501(4) or 501(7) or
otherwise, as the case may be, but, except as specified above, the
remainder of this Indenture and such Securities and any coupons
appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance. The following shall be the conditions to application
of Section 1402 or Section 1403 to any Outstanding Securities of or
within a series and any coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 607 who shall agree to
comply with the provisions of this Article Fourteen applicable
to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such
Securities and any coupons appertaining thereto, (1) an amount
(in such Currency in which such Securities and any coupons
appertaining thereto are then specified as payable at Stated
Maturity), or (2) Government Obligations applicable to such
Securities and coupons appertaining thereto (determined on the
basis of the Currency in which such Securities and coupons
appertaining thereto are then specified as payable at Stated
Maturity) which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of
any payment of principal of (and premium, if any) and
interest, if any, on such Securities and any coupons
appertaining thereto, money in an amount, or (3) a combination
thereof in an amount, in each such case sufficient, in the
opinion of a nationally recognized firm of independent public
accountants (selected by the Company) expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i) the principal of
(and premium, if any) and interest, if any, on such
Outstanding Securities and any coupons appertaining thereto on
the Stated Maturity of such principal or installment of
principal or interest and (ii) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding
Securities and any coupons appertaining thereto on the day on
which such payments are due and payable in accordance with the
terms of this Indenture and of such Securities and any coupons
appertaining thereto.
(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default
under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is
bound.
(c) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with
respect to such Securities and any coupons appertaining
thereto shall have occurred and be continuing on the date of
such deposit or, insofar as Sections 501(5) and 501(6) are
concerned, at any time during the period ending on the 91st
day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under Section 1402, the
Company shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Company has received from, or
there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of execution of this Indenture,
there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Outstanding
Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes
as a result of such defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance had
not occurred.
(e) In the case of an election under Section 1403, the
Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Outstanding
Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes
as result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant
defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent to the defeasance under Section
1402 or the covenant defeasance under Section 1403 (as the
case may be) have been complied with and an Opinion of Counsel
to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of
the Company's option under Section 1402 or Section 1403 (as
the case may be), registration is not required under the
Investment Company Act of 1940, as amended, by the Company,
with respect to the trust funds representing such deposit or
by the trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this
Section, such defeasance or covenant defeasance shall be
effected in compliance with any additional or substitute
terms, conditions or limitations in connection therewith
pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions. Subject to the
provisions of the last paragraph of Section 1003, all money and
Government Obligations (or other property as may be provided
pursuant to Section 301) (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 1405, the "Trustee") pursuant to Section
1404 in respect of any Outstanding Securities of any series and any
coupons appertaining thereto shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities
and any coupons appertaining thereto and this Indenture, to the
payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent
required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in Section
1404 (a) has been made, (a) the Holder of a Security in respect of
which such deposit was made is entitled to, and does, elect
pursuant to Section 312(b) or the terms of such Security to receive
payment in a Currency other than that in which the deposit pursuant
to Section 1404(a) has been made in respect of such Security, or
(b) a Conversion Event occurs as contemplated in Section 312(d) or
312(e) or by the terms of any Security in respect of which the
deposit pursuant to Section 1404(a) has been made, the indebtedness
represented by such Security and any coupons appertaining thereto
shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if
any), and interest, if any, on such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as
specified below in the case of any such election) the amount or
other property deposited in respect of such Security into the
Currency in which such Security becomes payable as a result of such
election or Conversion Event based on the applicable Market
Exchange Rate for such Currency in effect on the second Business
Day prior to each payment date, except, with respect to a
Conversion Event, for such Currency in effect (as nearly as
feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the
Government Obligations deposited pursuant to Section 1404 or the
principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of
the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon
Company Request any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in
Section 1404 which, in the opinion of a nationally recognized firm
of independent public accountants (selected by the Company)
expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be
required to be deposited to effect a defeasance or covenant
defeasance, as applicable, in accordance with this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. If
Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such series may be called at any time
and from time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
made, given or taken by Holders of Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings. (a) The
Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1501, to be held at
such time and at such place in The City of New York, or in London
as the Trustee shall determine. Notice of every meeting of Holders
of Securities of any series, setting forth the time and the place
of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in
Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of
the Outstanding Securities of any series shall have requested the
Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days
after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company
or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place
in The City of New York, or in London for such meeting and may call
such meeting for such purposes by giving notice thereof as provided
in subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of any series
shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote
a majority in principal amount of the Outstanding Securities of a
series shall constitute a quorum for a meeting of Holders of
Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver
which this Indenture expressly provides may be given by the Holders
of not less than a specified percentage in principal amount of the
Outstanding Securities of a series, the Persons entitled to vote
such specified percentage in principal amount of the Outstanding
Securities of such series shall constitute a quorum. In the
absence of a quorum within 30 minutes of the time appointed for any
such meeting, the meeting shall, if convened at the request of
Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned
meeting shall be given as provided in Section 1502(a), except that
such notice need be given only once not less than five days prior
to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of any adjourned meeting shall state
expressly the percentage, as provided above, of the principal
amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be adopted
by the affirmative vote of the Holders of a majority in principal
amount of the Outstanding Securities of that series; provided,
however, that, except as limited by the proviso to Section 902, any
resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority,
in principal amount of the Outstanding Securities of a series may
be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote
of the Holders of such specified percentage in principal amount of
the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with
this Section shall be binding on all the Holders of Securities of
such series and the related coupons, whether or not present or
represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504,
if any action is to be taken at a meeting of Holders of Securities
of any series with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action that this
Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such
series and one or more additional series:
(i) there shall be no minimum quorum requirement for
such meeting; and
(ii) the principal amount of the Outstanding Securities
of such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other
action shall be taken into account in determining whether such
request, demand, authorization, direction, notice, consent,
waiver or other action has been made, given or taken under
this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct
and Adjournment of Meetings. (a) Notwithstanding any provisions of
this Indenture, the Trustee may make such reasonable regulations as
it may deem advisable for any meeting of Holders of Securities of
a series in regard to proof of the holding of Securities of such
series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the Person
executing the proxy witnessed or guaranteed by any trust company,
bank or banker authorized by Section 104 to certify to the holding
of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section
104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by Holders of Securities as provided
in Section 1502(b), in which case the Company or the Holders of
Securities of the series calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at
the meeting.
(c) At any meeting each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal
amount of the Outstanding Securities of such series held or
represented by him (determined as specified in the definition of
"Outstanding" in Section 101); provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote, except as a Holder of a Security of such
series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority
in principal amount of the Outstanding Securities of such series
represented at the meeting, and the meeting may be held as so
adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of
Meetings. The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on
which shall be subscribed the signatures of the Holders of
Securities of such series or of their representatives by proxy and
the principal amounts and serial numbers of the Outstanding
Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the
proceedings of each meeting of Holders of Securities of any series
shall be prepared by the secretary of the meeting and there shall
be attached to said record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one
or more persons having knowledge of the facts setting forth a copy
of the notice of the meeting and showing that said notice was given
as provided in Section 1502 and, if applicable, Section 1504. Each
copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy
shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE SIXTEEN
SUBORDINATION
SECTION 1601. Securities Subordinated to Senior Debt. The
Company covenants and agrees, and each Holder of Securities, by his
acceptance thereof, likewise covenants and agrees, that the
indebtedness represented by the Securities and the payment of the
principal of (and premium, if any) and interest on each and all of
the Securities is hereby expressly subordinate and junior to the
extent and in the manner hereinafter set forth, in right of payment
to the prior payment in full of all Senior Debt (as defined in
Section 1611).
In the event (a) of any distribution of assets of the Company
upon any dissolution, winding up, liquidation or reorganization of
the Company, whether in bankruptcy, insolvency, reorganization or
receivership proceedings or upon an assignment for the benefit of
creditors or any other marshalling of the assets and liabilities of
the company or otherwise, except a distribution in connection with
a consolidation or merger or a conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety
which complies with the requirements of Article Eight, or (b) that
the principal of the Securities of any series (or in the case of
Original Issue Discount Securities, the portion of the principal
amount thereof referred to in Section 502) shall have been declared
due and payable pursuant to Section 502 and such declaration shall
not have been rescinded and annulled as provided in said Section
502, then:
(1) in the circumstances described in the foregoing
clause (a), the holders of all Senior Debt, and in the
circumstance described in the foregoing clause (b) the holders
of all Senior Debt outstanding at the time the principal of
such Securities (or in the case of Original Issue Discount
Securities such portion of the principal amount) shall have
been so declared due and payable, shall first be entitled to
receive payment of the full amount due thereon in respect of
principal, (premium, if any) and interest, or provision shall
be made for such amount in money or money's worth, before the
Holders of any of the Securities are entitled to receive any
payment on account of the principal, (premium, if any) or
interest on the indebtedness evidenced by the Securities;
(2) in the circumstances described in the foregoing
clause (a), any payment by, or distribution of assets of, the
Company of any kind or character, whether in cash, property or
securities (other than securities of the Company as
reorganized or readjusted or securities of the Company or any
other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to
the extent provided in this Article with respect to the
Securities, to the payment of all Senior Debt, provided that
the rights of the holders of Senior Debt are not altered by
such reorganization or readjustment), to which the Holders of
any of the Securities or the Trustee would be entitled except
for the provisions of this Article shall be paid or delivered
by the person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or
otherwise, directly to the holders of such Senior Debt or
their representative or representatives or to the trustee or
trustees under any indenture under which any instruments
evidencing any of such Senior Debt may have been issued,
ratably according to the aggregate amounts remaining unpaid on
account of such Senior Debt held or represented by each, to
the extent necessary to make payment in full of all Senior
Debt remaining unpaid after giving effect to any concurrent
payment or distribution (or provision therefor) to the holders
of such Senior Debt, before any payment or distribution is
made to the Holders of any indebtedness evidenced by the
Securities or to the Trustee under this Indenture; and
(3) in the circumstances described in the foregoing
clause (a), in the event that, notwithstanding the foregoing,
any payment by, or distribution of assets of, the Company of
any kind or character, whether in cash, property or securities
(other than securities of the Company as reorganized or
readjusted or securities of the Company or any other
corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to
the extent provided in this Article with respect to the
Securities, to the payment of all Senior Debt, provided that
the rights of the holders of Senior Debt are not altered by
such reorganization or readjustment), shall be received by the
Trustee or the Holders of any of the Securities before all
Senior Debt is paid in full, such payment or distribution
shall be paid over to the holders of such Senior Debt or their
representative or representatives or to the trustee or
trustees under any indenture under which any instruments
evidencing any of such Senior Debt may have been issued,
ratably as aforesaid, for application to the payment of all
Senior Debt remaining unpaid until all such Senior Debt shall
have been paid in full, after giving effect to any concurrent
payment or distribution (or provision therefor) to the holders
of such Senior Debt.
SECTION 1602. Subrogation. Subject to the payment in full of
all Senior Debt to which the indebtedness evidenced by the
Securities is in the circumstances subordinated as provided in
Section 1601, the Holders of the Securities shall be subrogated to
the rights of the holders of such Senior Debt to receive payments
or distributions of cash, property or securities of the Company
applicable to such Senior Debt until such amounts owing on the
Securities shall be paid in full, and, as between the Company, its
creditors other than holders of such Senior Debt, and the Holders
of the Securities, no such payment or distribution made to the
holders of Senior Debt by virtue of this Article which otherwise
would have been made to the Holders of the Securities shall be
deemed to be a payment by the Company on account of such Senior
Debt, it being understood that the provisions of the Article are
and are intended solely for the purpose of defining the relative
rights of the Holders of the Securities, on the one hand, and the
holders of Senior Debt, on the other hand.
SECTION 1603. Obligation of Company Unconditional. Nothing
contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Company,
its creditors other than the holders of Senior Debt, and the
Holders of the Securities, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders of the Securities
the principal of (and premium, if any) and interest on the
Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the
relative rights of the Holders of the Securities and creditors of
the Company other than the holders of Senior Debt, nor shall
anything herein or therein prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Debt in
respect of cash, property or securities of the Company received
upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee and the Holders of the
Securities shall be entitled to rely upon any order or decree made
by any court of competent jurisdiction in which any such
dissolution, winding up, liquidation or reorganization proceeding
affecting the affairs of the Company is pending or upon a
certificate of the trustee in bankruptcy, receiver, assignee for
the benefit of creditors, liquidation trustee or agent or other
Person making any payment or distribution, delivered to the Trustee
or to the Holders of the Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, and as to other facts pertinent to the right of such
Person under this Section, and if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such
payments.
SECTION 1604. No Payment on Securities in Event of Default on
Senior Debt. No payment by the Company on account of principal,
premium, if any, sinking funds or interest on the Securities shall
be made unless full payment of amount then due for principal,
premium, if any, sinking funds and interest on Senior Debt has been
made or duly provided for in money or money's worth, other than a
payment under Articles Eleven and Twelve if, at the time of mailing
of notice of redemption pursuant to Section 1104 or 1203, as the
case may be, relating to such payment, there is no such default
known to the Trustee.
SECTION 1605. Payments of Securities Permitted. Nothing
contained in this Article or elsewhere in this Indenture, or in any
of the Securities, shall affect the obligation of the Company to
make, or prevent the Company from making, payments of the principal
(or premium, if any) or interest on the Securities in accordance
with the provision hereof and thereof, or shall prevent the Trustee
or any Paying Agent from applying any moneys deposited with it
hereunder to the payment of the principal (or premium, if any) or
interest on the Securities, in each case except as otherwise
provided in this Article.
SECTION 1606. Effectuation of Subordination by Trustee. Each
Holder of Securities, by his acceptance thereof, authorizes and
directs the Trustee in his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided
in this Article and appoints the Trustee his attorney-in-fact for
any and all such purposes.
SECTION 1607. Knowledge of Trustee. Notwithstanding the
provisions of this Article or any other provisions of this
Indenture, the Trustee shall not be charged with knowledge of the
existence of any Senior Debt, of any default in payment of
principal, premium (if any) or interest on any Senior Debt or of
any facts which would prohibit the making of any payment of moneys
to or by the Trustee, or the taking of any other action by the
Trustee, unless and until a Responsible Officer of the Trustee
having responsibility for the administration of the trust
established by this Indenture shall have received written notice
thereof from the Company, any Holder of Securities, any paying or
conversion agent of the Company or the holder or representative of
any class of Senior Debt, and, prior to the receipt of any such
written notice, the Trustee shall be entitled in all respects to
assume that no such default or facts exist; provided, however, that
unless on the second Business Day prior to the date upon which the
terms hereof any such monies may become payable for any purpose
(other than a payment under Articles Eleven and Twelve) the Trustee
shall have received the notice provided for in this Section 1607,
then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such
monies and apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary
which may be received by it on or after such date.
SECTION 1608. Trustee's Relation to Senior Debt. The Trustee
shall be entitled to all the rights set forth in this Article with
respect to any Senior Debt at the time held by it, to the same
extent as any other holder of Senior Debt and nothing in this
Indenture shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article shall apply to claims of or
payments to the Trustee under or pursuant to Section 606.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no
implied covenants or obligations with respect to the holders of
Senior Debt shall be read into this Indenture against the Trustee.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and the Trustee shall not be liable to any
holder of Senior Debt if it shall pay over or deliver to Holders,
the Company or any other Person monies or assets to which any
holder of Senior Debt shall be entitled by virtue of this Article
or otherwise.
SECTION 1609. Rights of Holders of Senior Debt Not Impaired.
No right of any present or future holder of any Senior Debt to
enforce the subordination herein shall at any time or in any way be
prejudiced or impaired by any act or failure to act on the part of
the Company or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged
with.
SECTION 1610. Modification of Terms of Senior Debt. Any
renewal or extension of the time of payment of any Senior Debt or
the exercise by the holders of Senior Debt of any of their rights
under any instrument creating or evidencing Senior Debt, including
without limitation the waiver of default hereunder, may be made or
done all without notice to or assent from the Holders of the
Securities of the Trustee.
No compromise, alteration, amendment, modification, extension,
renewal or other change of, or waiver, consent or other action in
respect of, any liability or obligation under or in respect of, or
of any of the terms, covenants or conditions of any indenture or
other instrument under which any Senior Debt is outstanding or of
such Senior Debt, whether or not such release is in accordance with
the provisions of any applicable document, shall in any way alter
or affect any of the provisions of this Article or of the
Securities relating to the subordination thereof.
SECTION 1611. Definition of Senior Debt. "Senior Debt" means
the principal of (and premium, if any) and interest on any
indebtedness, whether outstanding at the date hereof or hereafter
created or incurred which is for (a) money borrowed by the Company
(including without limitation obligations of the Company in respect
of overdrafts, foreign exchange contracts, letters of credit,
bankers acceptances, or any loan or advance from a bank, whether or
not evidenced by debentures, notes or similar instruments), (b)
obligations which would be classified as liabilities on the balance
sheet of the Company, in accordance with generally accepted
accounting principles, evidencing the purchase price for the
acquisition of assets of any kind by the Company or a Subsidiary
except in the ordinary course of business, (c) money borrowed by
others and assumed or guaranteed by the Company, (d) obligations of
the Company under any agreement to lease, or any lease of, any real
or personal property which are capitalized on the books of the
Company in accordance with generally accepted accounting
principles, (e) obligations under performance guarantees, support
agreements and other agreements in the nature thereof relating to
the obligations of any subsidiary of the Company and (f) renewals,
extensions, refundings, amendments and modifications of any
indebtedness of the kind described in the foregoing clauses (a),
(b), (c), (d) and (e) or of the instruments creating or evidencing
such indebtedness or such renewal, extension, refunding, amendment
and modification, it is provided that such indebtedness, or such
indebtedness as so modified or amended, or such renewals,
extensions or refundings are not senior in right of payment to the
Securities.
ARTICLE SEVENTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 1701. Exemption from Individual Liability. No
recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer, director, employee or agent, as
such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company, whether by
virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations of the Company, and that
no such personal liability whatever shall attach to, or is or shall
be incurred by, the incorporators, stockholders, officers,
directors, employees or agents, as such, of the Company or of any
successor corporation, or any of them, because of the creation of
the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or
in any of the Securities or implied therefrom; and that any and all
such personal liability, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer, director,
employee or agent, as such, because of the creation of the
indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or
in any of the Securities or implied therefrom, are hereby expressly
waived and released as a condition of, and as a consideration for,
the execution of this Indenture and the issue of such Securities.
* * * * *
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the
same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year
first above written.
KANSAS CITY SOUTHERN INDUSTRIES, INC.
By______________________________________
[SEAL] Title:
Attest:
______________________________
Treasurer
________________________________________
___
By______________________________________
Title: ____________________________
[SEAL]
Attest:
______________________________
Assistant Secretary
<PAGE>
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the ____ day of ___________, 199_, before me personally
came _________________ to me known, who, being by me duly sworn,
did depose and say that he resides at
__________________________________________________, that he is
______________________________ of Kansas City Southern Industries,
Inc., one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like
authority.
[Notarial Seal]
________________________________________
Notary Public
COMMISSION EXPIRES
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the ____ day of ________________, 199_, before me
personally came __________________________, to me known, who, being
by me duly sworn, did depose and say that he resides at
____________________________________________________, that he is
_____________________ of _________________________________________,
one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like
authority.
[Notarial Seal]
________________________________________
Notary Public
COMMISSION EXPIRES
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
Exhibit A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered)
This is to certify that, as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our
account (i) are owned by person(s) that are not citizens or
residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject
to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States
person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in United States
Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred
to as "financial institutions") purchasing for their own account or
for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States
financial institutions on the date hereof (and in either case (a)
or (b), each such United States financial institution hereby
agrees, on its own behalf or through its agent, that you may advise
Kansas City Southern Industries, Inc. or its agent that such
financial institution will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code
of 1986, as amended, and the regulations thereunder), or (iii) are
owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in
United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign
financial institution described in clause (iii) above (whether or
not also described in clause (i) or (ii)), this is to further
certify that such financial institution has not acquired the
Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia) and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification
relating to the above-captioned Securities held by you for our
account in accordance with your Operating Procedures if any
applicable statement herein is not correct on such date, and in the
absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$]
_________________ of such interest in the above-captioned
Securities in respect of which we are not able to certify and as to
which we understand an exchange for an interest in a Permanent
Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be
made until we do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we
irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
Dated: ____________________, 19___
[To be dated no earlier than the 15th
day prior to (i) the Exchange Date or
(ii) the relevant Interest Payment Date
occurring prior to the Exchange Date,
as applicable]
[Name of Person Making
Certification]
___________________________________
(Authorized Signatory)
Name:
Title:
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL IN CONNECTION WITH THE EXCHANGE OF A
PORTION OF A TEMPORARY GLOBAL SECURITY OR TO OBTAIN
INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex or
by electronic transmission from each of the persons appearing in
our records as persons entitled to a portion of the principal
amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$]
__________________ principal amount of the above-captioned
Securities (i) is owned by person(s) that are not citizens or
residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject
to United States Federal income taxation regardless of its source
("United States person(s)"), (ii) is owned by United States
person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as
"financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities
through foreign branches of United States financial institutions
and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b),
each such financial institution has agreed, on its own behalf or
through its agent, that we may advise Kansas City Southern
Industries, Inc. or its agent that such financial institution will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign
financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that
financial institutions described in clause (iii) above (whether or
not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the
United States or its possessions.
As use herein, "United States" means the United States of
America (including the State and the District of Columbia), and its
"possessions" include Puerto Rico, the U.S. Virgin islands, Guam,
American Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest)
any portion of the temporary global Security representing the
above-captioned Securities excepted in the above-referenced
certificates of Member Organizations and (ii) as of the date hereof
we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted
herewith for exchange (or, if relevant, collection of any interest)
are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we
irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
Dated: _______________________, 19___
[To be dated no earlier than the
Exchange Date or the relevant
Interest Payment Date occurring
prior to the Exchange Date, as
applicable]
[Morgan Guaranty Trust Company
of New York, Brussels Office,] as
Operator of the Euroclear System
[Cedel S.A.]
By________________________________
