SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 or 15(d) OF THE
SECURITIES AND EXCHANGE ACT of 1934
December 15, 1995 (December 13, 1995)
Date of Report (Date of Earliest Event Reported) December 7, 1995
LOWE'S COMPANIES, INC.
(Exact name of registrant as specified in its charter)
North Carolina 0-94 56-0578072
State or other jurisdiction (Commission File No.) I.R.S. Employer
of incorporation) (Identification No.)
P.O. Box 1111
North Wilkesboro, North Carolina 28656-0001
(Address of principal executive offices)
(910) 651-4000
(Registrant's telephone number, including area code)
N/A
(former name or former address, if changed since last report)
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL
INFORMATION AND EXHIBITS
(c) The following exhibits are filed in connection with the Registrant's
offering of $100 million principal amount of Senior Notes pursuant to its shelf
registration statement on Form S-3 (file no. 33-51865). The offering is made
only by means of a prospectus.
Exhibits
1.1 Purchase Agreement, dated as of December 13, 1995, between Lowe's
Companies, Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorprated as
representative of the underwriters.
4.1 Amended and Restated Indenture, dated as of December 1, 1995, between
Lowe's Companies, Inc. and First National Bank of Chicago, as trustee.
4.2 Form of Lowes Companies, Inc. 6 3/8% Senior Note due December 15, 2005
2
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
LOWE'S COMPANIES, INC.
December 15, 1995 /s/Kenneth Neal
Date Kenneth A. Neal
Assistant Treasurer
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EXHIBIT INDEX
1.1 Purchase Agreement, dated as of December 13, 1995, between
Lowe's Companies, Inc. and Merrill Lynch, Pierce, Fenner &
Smith Incorprated as representative of the underwriters.
4.1 Amended and Restated Indenture, dated as of December 1, 1995,
between Lowe's Companies, Inc. and First National Bank of
Chicago, as trustee.
4.2 Form of Lowes Companies, Inc. 6 3/8% Senior Note due December
15, 2005
LOWE'S COMPANIES, INC.
(a North Carolina corporation)
6-3/8% Senior Notes Due 2005
PURCHASE AGREEMENT
Dated: December 13, 1995
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LOWE'S COMPANIES, INC.
(a North Carolina corporation)
6-3/8% Senior Notes Due 2005
PURCHASE AGREEMENT
December 13, 1995
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated GOLDMAN, SACHS & CO.
LEHMAN BROTHERS INC.
MONTGOMERY SECURITIES
c/o MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1201
Ladies and Gentlemen:
Lowe's Companies, Inc., a North Carolina corporation (the
"Company"), proposes to issue and sell to you, as underwriters (the
"Underwriters"), its 6-3/8% Senior Notes Due 2005 (the "Securities") on the
terms and conditions stated herein and in Schedule B. The Securities are to be
sold to each Underwriter, acting severally and not jointly, in the respective
principal amounts as are set forth in Schedule A hereto opposite the name of
such Underwriter. The Securities are to be issued pursuant to an indenture to be
dated as of December 1, 1995 (the "Indenture") between the Company and The First
National Bank of Chicago, as trustee (the "Trustee"). The Securities and the
Indenture are more fully described in the Prospectus referred to below.
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The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(Registration No. 33-51865), including a prospectus, relating to certain of its
debt securities, preferred stock, common stock and preferred stock purchase
rights and the offering thereof from time to time in accordance with Rule 415
under the Securities Act of 1933, as amended (the "1933 Act"). Such registration
statement has been declared effective by the Commission. As provided in Section
3(a), a prospectus supplement reflecting the terms of the Securities, the terms
of the offering thereof and other matters set forth therein has been prepared
and will be filed pursuant to Rule 424 under the 1933 Act. Such prospectus
supplement, in the form first filed after the date hereof pursuant to Rule 424,
is herein referred to as the "Prospectus Supplement." Such registration
statement, as amended at the date hereof, including the exhibits thereto and the
documents incorporated by reference therein, is herein called the "Registration
Statement," and the basic prospectus included therein relating to all offerings
of securities under the Registration Statement, as supplemented by the
Prospectus Supplement, is herein called the "Prospectus," except that, if such
basic prospectus is amended or supplemented on or prior to the date on which the
Prospectus Supplement is first filed pursuant to Rule 424, the term "Prospectus"
shall refer to the basic prospectus as so amended or supplemented and as
supplemented by the Prospectus Supplement, in either case including the
documents filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), that are incorporated by
reference therein.
The Company understands that the Underwriters propose to make
a public offering of the Securities as soon as you deem advisable after this
Agreement has been executed and delivered.
Section 1. Representations and Warranties. (a) The Company
represents and warrants to and agrees with each of the Underwriters that:
(i) On the original effective date of the Registration
Statement, on the effective date of the most recent post-effective
amendment thereto, if any, and on the date of the filing by the Company
of any annual report on Form 10-K after the original filing of the
Registration Statement, the Registration Statement complied in all
material respects with the requirements of the 1933 Act, the rules and
regulations of the Commission thereunder (the "1933 Act Regulations"),
the Trust Indenture Act of 1939, as amended (the "1939 Act") and the
rules and regulations of the Commission under the 1939 Act (the "1939
Act Regulations") and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; on the date
hereof and at the Closing Time (as defined below), (A) the Registration
Statement, and any amendments and supplements thereto, comply and will
comply in all material respects with the requirements of the 1933 Act,
the 1933 Act Regulations, the 1939 Act and
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the 1939 Act Regulations, (B) neither the Registration Statement nor
any amendment or supplement thereto includes or will include an untrue
statement of a material fact or omits or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and (C) neither the Prospectus nor
any amendment or supplement thereto includes or will include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter, directly or through you, expressly for use in the
Registration Statement or the Prospectus.
(ii) The documents incorporated by reference in the
Prospectus, pursuant to Item 12 of Form S-3 under the 1933 Act at the
time they were filed with the Commission, complied in all material
respects with the requirements of the 1934 Act, and the rules and
regulations of the Commission thereunder (the "1934 Act Regulations")
and, when read together and with the other information in the
Prospectus do not and will not, on the date hereof and at the Closing
Time, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein not misleading.
(iii) Deloitte & Touche, who have reported upon the audited
financial statements and schedules included or incorporated by
reference in the Registration Statement, are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
(v) The consolidated financial statements included or
incorporated by reference in the Registration Statement present fairly
the consolidated financial position of the Company and its subsidiaries
as of the dates indicated and the consolidated results of operations
and the consolidated cash flows of the Company and its subsidiaries for
the periods specified. Such financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved. The financial
statement schedules, if any, included in the Registration Statement
present fairly the information required to be stated therein. The
selected financial data included or incorporated by reference in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited consolidated
financial statements included or incorporated by reference in the
Registration Statement.
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(vi) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of North
Carolina with corporate power and authority under such laws to own,
lease and operate its properties and conduct its business as described
in the Prospectus; and the Company is duly qualified to transact
business as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be in
good standing would not have a material adverse effect on the Company
and its subsidiaries, considered as one enterprise.
(vii) Each of Lowe's Home Centers, Inc., a North Carolina
corporation, LF Corporation, a Delaware corporation, and The Contractor
Yard, Inc., a North Carolina corporation (collectively, the
"Significant Subsidiaries"; "subsidiaries" has the meaning set forth in
Rule 405 under the 1933 Act), is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation with corporate power and authority under such laws to
own, lease and operate its properties and conduct its business; and
each Significant Subsidiary is duly qualified to transact business as a
foreign corporation and is in good standing in each other jurisdiction
in which it owns or leases property of a nature, or transacts business
of a type, that would make such qualification necessary, except to the
extent that the failure to so qualify or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
considered as one enterprise. All of the outstanding shares of capital
stock of each Significant Subsidiary have been duly authorized and
validly issued and are fully paid and nonassessable and are owned by
the Company, directly or through one or more Significant Subsidiaries,
free and clear of any pledge, lien, security interest, charge, claim,
equity or encumbrance of any kind.
(viii) The Company had at the date indicated a duly
authorized, issued and outstanding capitalization as set forth in the
Prospectus under the caption "Capitalization."
(ix) The Indenture and any supplement thereto or board
resolution or other action of authorized officers of the Company
setting forth the terms of the Securities (the Indenture, as so
supplemented by the supplement, board resolutions or action of
authorized officers being herein referred to as the "Indenture") has
been duly authorized by the Company, will be substantially in the form
heretofore delivered to you and, when duly executed and delivered by
the Company and the Trustee, will constitute a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting
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enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law);
and the Indenture conforms to the description thereof in the
Prospectus.
(x) The Securities have been duly authorized by the Company.
When executed, authenticated, issued and delivered in the manner
provided for in the Indenture and sold and paid for as provided in this
Agreement, the Securities will constitute valid and binding obligations
of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law);
and the Securities conform to the description thereof in the
Prospectus.
(xi) All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid
and nonassessable; no holder thereof is or will be subject to personal
liability by reason of being such a holder; and none of the outstanding
shares of capital stock of the Company issued since December 19, 1979
was issued in violation of the preemptive rights of any stockholder of
the Company.
(xii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein or contemplated thereby, there has not been
(A) any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise, whether or
not arising in the ordinary course of business, (B) any transaction
entered into by the Company or any subsidiary, other than in the
ordinary course of business, that is material to the Company and its
subsidiaries, considered as one enterprise, or (C) any dividend (other
than ordinary quarterly dividends declared, paid or made in the
ordinary course of business) or distribution of any kind declared, paid
or made by the Company on its capital stock.
(xiii) Neither the Company nor any Significant Subsidiary is
in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument
to which it is a party or by which it may be bound or to which any of
its properties may be subject, except for such defaults that would not
have a material adverse effect on the condition (financial or
otherwise), earnings,
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business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise. The execution and delivery
of this Agreement and the Indenture by the Company, the issuance and
delivery of the Securities, the consummation by the Company of the
transactions contemplated in this Agreement, in the Prospectus and in
the Registration Statement and compliance by the Company with the terms
of this Agreement and the Indenture, have been duly authorized by all
necessary corporate action on the part of the Company and do not and
will not result in any violation of the charter or by-laws of the
Company or any Significant Subsidiary, and do not and will not conflict
with, or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company or any Significant Subsidiary under (A) any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any Significant Subsidiary is a
party or by which it may be bound or to which any of its properties may
be subject (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs
or business prospects of the Company and its subsidiaries, considered
as one enterprise) or (B) any existing applicable law, rule,
regulation, judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any Significant Subsidiary or any of their respective
properties.
(xiv) No authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than under the 1933 Act, the 1939 Act and the securities or blue
sky laws of the various states), is required for the valid
authorization, issuance, sale and delivery of the Securities, or for
the execution, delivery or performance of the Indenture by the Company.
(xv) Except as disclosed in the Prospectus, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against or affecting the Company
or any Significant Subsidiary that is required to be disclosed in the
Prospectus or that could result in any material adverse change in the
condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as
one enterprise, or that could materially and adversely affect the
properties or assets of the Company and its subsidiaries, considered as
one enterprise, or that could adversely affect the consummation of the
transactions contemplated in this Agreement; the aggregate of all
pending legal or governmental proceedings that are not described in the
Prospectus to which the Company or any Significant Subsidiary is a
party or which affect any of their respective properties, including
ordinary routine litigation incidental to the business of the Company
or any Significant Subsidiary, would not have a material
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adverse effect on the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(xvi) There are no contracts or documents of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described and filed as required.
(xvii) The Company and the Significant Subsidiaries each owns,
possesses or has obtained all material governmental licenses, permits,
certificates, consents, orders, approvals and other authorizations
necessary to own or lease, as the case may be, and to operate its
properties and to carry on its business as presently conducted (other
than such licenses, permits, certificates, consents, orders, approvals
and authorizations which, if neither owned, possessed nor obtained,
would not have a material adverse effect on the business of the Company
and its subsidiaries, considered as one enterprise), and neither the
Company nor any Significant Subsidiary has received any notice of
proceedings relating to revocation or modification of any such
licenses, permits, certificates, consents, orders, approvals or
authorizations.
(xviii) The Company and the Significant Subsidiaries each owns
or possesses, or can acquire on reasonable terms, adequate patents,
patent licenses, trademarks, service marks and trade names necessary to
carry on its business as presently conducted, and neither the Company
nor any Significant Subsidiary has received any notice of infringement
of or conflict with asserted rights of others with respect to any
patents, patent licenses, trademarks, service marks or trade names that
in the aggregate, if the subject of an unfavorable decision, ruling or
finding, could materially adversely affect the condition (financial or
otherwise), earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise.
(xix) To the best knowledge of the Company, no labor problem
exists with its employees or with employees of the Significant
Subsidiaries or is imminent that could adversely affect the Company and
its subsidiaries, considered as one enterprise, and the Company is not
aware of any existing or imminent labor disturbance by the employees of
any of its or the Significant Subsidiaries' principal suppliers,
contractors or customers that could be expected to materially adversely
affect the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise.
(xx) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the Securities.
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(xxi) Except as disclosed in the Registration Statement and
except as would not individually or in the aggregate have a material
adverse effect on the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise, (A) the Company and the
Significant Subsidiaries are each in compliance with all applicable
Environmental Laws, (B) the Company and the Significant Subsidiaries
have all permits, authorizations and approvals required under any
applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or threatened Environmental
Claims against the Company or any of the Significant Subsidiaries, and
(D) there are no circumstances with respect to any property or
operations of the Company or the Significant Subsidiaries that could
reasonably be anticipated to form the basis of an Environmental Claim
against the Company or the Significant Subsidiaries.
For purposes of this Agreement, the following terms shall have
the following meanings: "Environmental Law" means any United States (or
other applicable jurisdiction's) federal, state, local or municipal
statute, law, rule, regulation, ordinance, code, policy or rule of
common law and any judicial or administrative interpretation thereof
including any judicial or administrative order, consent decree or
judgment, relating to the environment, health, safety or any chemical,
material or substance, exposure to which is prohibited, limited or
regulated by any governmental authority. "Environmental Claims" means
any and all administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigations or proceedings relating in any way to any
Environmental Law.
(b) Any certificate signed by any officer of the Company or
any Significant Subsidiary and delivered to you or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
Section 2. Sale and Delivery to the Underwriters; Closing. (a)
On the basis of the representations and warranties herein contained, and subject
to the terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price to the Underwriters set forth in
Schedule B, the principal amount of Securities set forth opposite the name of
such Underwriter in Schedule A, plus any additional principal amount of
Securities that such Underwriter may become obligated to purchase pursuant to
Section 10 of this Agreement.
(b) Payment of the purchase price for, and delivery of,
the Securities shall be made at the offices of Shearman & Sterling, 599
Lexington Avenue, New York,
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New York 10022, or at such other place as shall be agreed upon by the Company
and you, at 10:00 A.M. on the third full business day after the date of this
Agreement (unless postponed pursuant to Section 10), or at such other time not
more than ten full business days thereafter as you and the Company shall
determine (such date and time of payment and delivery being herein called the
"Closing Time"). Payment shall be made to the Company by wire transfer of
immediately available funds to an account designated by the Company, against
delivery to you for the respective accounts of the several Underwriters of the
Securities to be purchased by them.
(c) The Securities to be purchased by the Underwriters shall
be in such denominations and registered in such names as you may request in
writing at least two full business days before the Closing Time. The Securities
will be made available in New York City for examination and packaging by you not
later than 10:00 A.M. on the business day prior to the Closing Time.
Section 3. Certain Covenants of the Company. The Company
covenants with each Underwriter as follows:
(a) If reasonably requested by you in connection with the
offering of the Securities, the Company will prepare preliminary
prospectus supplements containing such information as you and the
Company deem appropriate, and, immediately following the execution of
this Agreement, the Company will prepare a Prospectus Supplement that
complies with the 1933 Act and the 1933 Act Regulations and that sets
forth the principal amount of the Securities and their terms not
otherwise specified in the Indenture, the name of each Underwriter
participating in the offering and the principal amount of the
Securities that each severally has agreed to purchase, the name of each
Underwriter, if any, acting as representative of the Underwriters in
connection with the offering, the price at which the Securities are to
be purchased by the Underwriters from the Company, any initial public
offering price, any selling concession and reallowance and any delayed
delivery arrangements, and such other information as you and the
Company deem appropriate in connection with the offering of the
Securities. The Company will promptly transmit copies of the Prospectus
Supplement to the Commission for filing pursuant to Rule 424 under the
1933 Act and will furnish to the Underwriters as many copies of any
preliminary prospectus supplements and the Prospectus as you shall
reasonably request.
(b) The Company will comply to the best of its ability with
the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations, and the 1939 Act and the 1939 Act Regulations so as to
permit the completion of the distribution of the Securities as
contemplated in this Agreement and the Prospectus. If at any time when
a prospectus is required by the 1933 Act to be delivered in connection
with sales of the Securities any event shall occur or condition exist
as a
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result of which it is necessary, in the opinion of counsel for the
Underwriters or counsel for the Company, to amend the Registration
Statement or amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary,
in the opinion of either such counsel, at any such time to amend the
Registration Statement or amend or supplement the Prospectus in order
to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the
Commission, subject to Section 3(d), such amendment or supplement as
may be necessary to correct such untrue statement or omission or to
make the Registration Statement or the Prospectus comply with such
requirements.
(c) During the period when a prospectus is required by the
1933 Act to be delivered in connection with sales of the Securities,
the Company will, subject to Section 3(d), file promptly all documents
required to be filed with the Commission pursuant to Section 13, 14 or
15(d) of the 1934 Act.
(d) During the period when a prospectus is required by the
1933 Act to be delivered in connection with sales of the Securities,
the Company will inform you of its intention to file any amendment to
the Registration Statement, any supplement to the Prospectus or any
document that would as a result thereof be incorporated by reference in
the Prospectus; will furnish you with copies of any such amendment,
supplement or other document a reasonable time in advance of filing;
and will not file any such amendment, supplement or other document in a
form to which you or your counsel shall reasonably object.
(e) During the period when a prospectus is required by the
1933 Act to be delivered in connection with sales of the Securities,
the Company will notify you immediately, and confirm the notice in
writing, (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmission to the Commission for filing of any
supplement to the Prospectus or any document that would as a result
thereof be incorporated by reference in the Prospectus, (iii) of the
receipt of any comments from the Commission with respect to the
Registration Statement, the Prospectus or the Prospectus Supplement,
(iv) of any request by the Commission for any amendment to the
Registration Statement or any supplement to the Prospectus or for
additional information relating thereto or to any document incorporated
by reference in the Prospectus and (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the
institution or threatening of any proceeding for any of such purposes.
The Company will use every reasonable effort to prevent the issuance of
any such stop order or of
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any order suspending such qualification and, if any such order is
issued, to obtain the lifting thereof at the earliest possible moment.
(f) The Company has furnished or will furnish to you as many
signed copies of the Registration Statement (as originally filed) and
of all amendments thereto, whether filed before or after the
Registration Statement became effective, copies of all exhibits and
documents filed therewith or incorporated by reference therein (through
the end of the period when a prospectus is required by the 1933 Act to
be delivered in connection with sales of the Securities) and signed
copies of all consents and certificates of experts, as you may
reasonably request, and has furnished or will furnish to you, for each
of the Underwriters, one conformed copy of the Registration Statement
(as originally filed) and of each amendment thereto (including
documents incorporated by reference into the Prospectus but without
exhibits).
(g) The Company will use its best efforts, in cooperation with
the Underwriters, to qualify the Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions
as you may designate and to maintain such qualifications in effect for
a period of not less than one year from the date hereof; provided,
however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or
as a dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise so subject. The
Company will file such statements and reports as may be required by the
laws of each jurisdiction in which the Securities have been qualified
as above provided. The Company will also supply you with such
information as is necessary for the determination of the legality of
the Securities for investment under the laws of such jurisdictions as
you may request.
(h) The Company will make generally available to its security
holders as soon as practicable, but not later than 45 days after the
close of the period covered thereby, an earnings statement of the
Company (in form complying with the provisions of Rule 158 of the 1933
Act Regulations), covering (i) a period of 12 months beginning after
the effective date of the Registration Statement and covering a period
of 12 months beginning after the effective date of any post-effective
amendment to the Registration Statement but not later than the first
day of the Company's fiscal quarter next following such respective
effective dates and (ii) a period of 12 months beginning after the date
of this Agreement but not later than the first day of the Company's
fiscal quarter next following the date of this Agreement.
(i) The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the
Prospectus under the caption "Use of Proceeds."
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(j) For a period of five years after the Closing Time, the
Company will furnish to you and, upon request, to each Underwriter,
copies of all annual reports, quarterly reports and current reports
filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar forms as may be designated by the Commission, and such other
documents, reports and information as shall be furnished by the Company
to its stockholders or security holders generally.
(k) The Company has complied and will comply with all the
provisions of Florida H.B. 1771, codified as Section 517.075 of the
Florida Statutes, and all regulations promulgated thereunder relating
to issuers doing business in Cuba.
Section 4. Payment of Expenses. The Company will pay and bear
all costs and expenses incident to the performance of its obligations under this
Agreement, including (a) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, the preliminary prospectus supplement and the
Prospectus and any amendments or supplements thereto, and the cost of furnishing
copies thereto to the Underwriters, (b) the preparation, printing and
distribution of this Agreement, the Indenture, the Securities, the Blue Sky
Survey and the Legal Investment Survey, (c) the delivery of the Securities to
the Underwriters, (d) the fees and disbursements of the Company's counsel and
accountants, (e) the qualification of the Securities under the applicable
securities laws in accordance with Section 3(g) and any filing for review of the
offering with the National Association of Securities Dealers, Inc., including
filing fees and fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the Blue Sky Survey and the Legal
Investment Survey, (f) any fees charged by rating agencies for rating the
Securities and (g) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee, in connection with the Indenture and
the Securities.
If this Agreement is terminated by you in accordance with the
provisions of Section 5 or 9(a)(i), the Company shall reimburse the Underwriters
for all their out-of-pocket expenses, including the fees and disbursements of
counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The
obligations of the several Underwriters to purchase and pay for the Securities
that they have respectively agreed to purchase pursuant to this Agreement are
subject to the accuracy of the representations and warranties of the Company
contained herein or in certificates of any officer of the Company or any
Significant Subsidiary delivered pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder, and to the following
further conditions:
(a) At the Closing Time, no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act and no proceedings
<PAGE>
13
for that purpose shall have been instituted or shall be pending or, to
your knowledge or the knowledge of the Company, shall be contemplated
by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the
satisfaction of counsel for the Underwriters.
(b) (i) At the Closing Time, you shall have received a signed
opinion of William C. Warden, Jr., General Counsel for the Company,
dated as of the Closing Time, together with signed or reproduced copies
of such opinion for each of the other Underwriters, in form and
substance satisfactory to counsel for the Underwriters, to the effect
that:
(A) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of North Carolina, with corporate power and authority
under such laws to own, lease and operate its properties and
conduct its business as described in the Prospectus.
(B) Each Significant Subsidiary is a corporation duly
incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation with corporate
power and authority under such laws to own, lease and operate
its properties and conduct its business.
(C) All of the outstanding shares of capital stock of
the Company have been duly authorized and validly issued and
are fully paid and non-assessable, and no holder thereof is or
will be subject to personal liability by reason of being such
a holder; and none of the outstanding shares of capital stock
of the Company was issued in violation of the preemptive
rights of any stockholder of the Company.
(D) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus under
the heading "Capitalization".
(E) All of the outstanding shares of capital stock of
each Significant Subsidiary have been duly authorized and
validly issued and are fully paid and non-assessable; all of
such shares are owned by the Company, directly or through one
or more Significant Subsidiaries, free and clear of any
pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind; no holder thereof is subject to
personal liability by reason of being such a holder and none
of such shares was issued in violation of the preemptive
rights of any stockholder of the Significant Subsidiaries.
(F) The Indenture has been duly authorized, executed and delivered by the
Company and, assuming due authorization, execution and delivery by
<PAGE>
14
the Trustee, constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with
its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law).
(G) The Securities have been duly authorized by the
Company and, assuming that the Securities have been duly
authenticated by the Trustee in the manner described in its
certificate delivered to you at the Closing Time (which fact
such counsel need not determine by an inspection of the
Securities), the Securities have been duly executed, issued
and delivered by the Company and constitute valid and binding
obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance
with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law).
(H) Such counsel does not know of any statutes or
regulations, or any pending or threatened legal or
governmental proceedings, required to be described in the
Prospectus that are not described as required, nor of any
contracts or documents of a character required to be described
or referred to in the Registration Statement or the Prospectus
or to be filed as exhibits to the Registration Statement that
are not described, referred to or filed as required.
(I) To the knowledge of such counsel, no default
exists in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, loan agreement, note, lease or other
agreement or instrument that is described or referred to in
the Registration Statement or the Prospectus or filed as an
exhibit to the Registration Statement.
(J) The execution and delivery of this Agreement and
the Indenture by the Company, the issuance and delivery of the
Securities, the consummation by the Company of the
transactions contemplated in this Agreement, in the Indenture,
in the Prospectus and in the Registration Statement and
compliance by the Company with the terms of this Agreement
<PAGE>
15
and the Indenture do not and will not result in any violation
of the charter or by-laws of the Company or any Significant
Subsidiary, and do not and will not conflict with, or result
in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Significant
Subsidiary under (1) any contract, indenture, mortgage, loan
agreement, note, lease or any other agreement or instrument
known to such counsel, to which the Company or any Significant
Subsidiary is a party or by which it may be bound or to which
any of its properties may be subject (except for such
conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a material adverse effect on
the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise), (2) any existing
applicable law, rule or regulation (other than the securities
or blue sky laws of the various states, as to which such
counsel need express no opinion), or (3) any judgment, order
or decree of any government, governmental instrumentality or
court, domestic or foreign, having jurisdiction over the
Company or any Significant Subsidiary or any of their
respective properties.
(K) The descriptions in the Prospectus of the
statutes, regulations, legal or governmental proceedings,
contracts and other documents therein described are accurate
and fairly summarize the information required to be shown.
Such opinion shall be to such further effect with respect to other
legal matters relating to this Agreement and the sale of the Securities
pursuant to this Agreement as counsel for the Underwriters may
reasonably request. In giving such opinion, such counsel may rely, as
to all matters governed by the laws of jurisdictions other than the law
of the State of North Carolina and the federal law of the United
States, upon opinions of other counsel, who shall be counsel
satisfactory to counsel for the Underwriters, in which case the opinion
shall state that they believe you and they are entitled to so rely.
Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and the Significant
Subsidiaries and certificates of public officials; provided that such
certificates have been delivered to the Underwriters.
(ii) At the Closing Time, you shall have received a signed
opinion of Hunton & Williams, counsel for the Company, dated as of the
Closing Time, together with signed or reproduced copies of such opinion
for each of the other Underwriters, in form and substance satisfactory
to counsel for the Underwriters, to the effect that:
<PAGE>
16
(A) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of North Carolina with corporate power and authority
under such laws to own, lease and operate its properties and
conduct its business as described in the Prospectus.
(B) The Indenture has been duly authorized, executed
and delivered by the Company and, assuming due authorization,
execution and delivery by the Trustee, constitutes a valid and
binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles
of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law).
(C) The Securities have been duly authorized by the
Company and, assuming that the Securities have been duly
authenticated by the Trustee in the manner described in its
certificate delivered to you at the Closing Time (which fact
such counsel need not determine by an inspection of the
Securities), the Securities have been duly executed, issued
and delivered by the Company and constitute valid and binding
obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance
with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law).
(D) This Agreement has been duly authorized, executed
and delivered by the Company.
(E) The Indenture has been duly qualified under the
1939 Act.
(F) The Securities and the Indenture conform in all
material respects as to legal matters to the descriptions
thereof in the Prospectus.
(G) No authorization, approval, consent or license of
any government, governmental instrumentality or court,
domestic or foreign (other than under the 1933 Act, the 1939
Act and the securities or blue sky laws of the various
states), is required for the valid authorization, issuance,
sale and
<PAGE>
17
delivery of the Securities or for the execution, delivery or performance of
the Indenture by the Company.
(H) The execution and delivery of this Agreement by
the Company, the issuance and delivery of the Securities, the
consummation by the Company of the transactions contemplated
in this Agreement, in the Indenture, in the Prospectus and in
the Registration Statement and compliance by the Company with
the terms of this Agreement and the Indenture do not and will
not result in any violation of the charter or by-laws of the
Company or any Significant Subsidiary.
(I) The Registration Statement became effective under
the 1933 Act on February 8, 1994; any required filing of any
preliminary prospectus supplement or the Prospectus Supplement
pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); and, to the best of
the knowledge of such counsel, the Registration Statement is
still effective, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or are
contemplated under the 1933 Act.
(J) The Registration Statement and the Prospectus,
excluding the documents incorporated by reference therein, and
each amendment or supplement thereto (except for the financial
statements and other financial or statistical data included
therein or omitted therefrom, as to which such counsel need
express no opinion), as of their respective effective or issue
dates, appear on their face to have been appropriately
responsive in all material respects to the requirements of the
1933 Act and the 1933 Act Regulations and the Indenture and
the Statement of Eligibility of the Trustee on Form T-1 filed
with the Commission as part of the Registration Statement
appear on their face to have been appropriately responsive in
all material respects to the requirements of the 1939 Act and
the 1939 Act Regulations.
(K) The documents incorporated by reference in the
Prospectus (except for the financial statements and other
financial or statistical data included therein or omitted
therefrom, as to which such counsel need express no opinion,
and except to the extent that any statement therein is
modified or superseded in the Prospectus), as of the dates
they were filed with the
<PAGE>
18
Commission, appear on their face to have been appropriately
responsive in all material respects to the requirements of the
1934 Act and the 1934 Act Regulations.
(L) Such counsel have participated in the preparation
of the Registration Statement and the Prospectus and are
familiar with or have participated in the preparation of the
documents incorporated by reference in the Prospectus and no
facts have come to the attention of such counsel to lead them
to believe (1) that the Registration Statement or any
amendment thereto (except for the financial statements and
other financial or statistical data included therein or
omitted therefrom and the Statement of Eligibility of the
Trustee on Form T-1, as to which such counsel need express no
opinion), on the original effective date of the Registration
Statement, on the effective date of the most recent
post-effective amendment thereto, if any, on the date of the
filing of any annual report on Form 10-K after the filing of
the Registration Statement, on the date of this Agreement, or
on the date any such amendment became effective after the date
of this Agreement, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or (2) that the Prospectus or any amendment or
supplement thereto (except for the financial statements and
other financial or statistical data included therein or
omitted therefrom, as to which such counsel need express no
opinion), at the time the Prospectus Supplement was issued, at
the time any such amended or supplemented prospectus was
issued or at the Closing Time, included or include an untrue
statement of a material fact or omitted or omit to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading or (3) that the documents
incorporated by reference in the Prospectus (except for the
financial statements and other financial or statistical data
included therein or omitted therefrom, as to which such
counsel need express no opinion, and except to the extent that
any statement therein is modified or superseded in the
Prospectus), as of the dates they were filed with the
Commission, included an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading.
Such opinion shall be to such further effect with respect to other
legal matters relating to this Agreement and the sale of the Securities
pursuant to this Agreement as counsel for the Underwriters may
reasonably request. In giving such opinion, such counsel may rely, as
to all matters governed by the laws of jurisdictions other than the law
of the States of New York and North Carolina and the federal law of the
United States, upon opinions of other counsel, who shall be counsel
satisfactory to counsel for the Underwriters, in which case the opinion
shall state that they believe you and they are
<PAGE>
19
entitled to so rely. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and the
Significant Subsidiaries and certificates of public officials; provided
that such certificates have been delivered to the Underwriters.
(c) At the Closing Time, you shall have received the favorable
opinion of Shearman & Sterling, counsel for the Underwriters, dated as
of the Closing Time, together with signed or reproduced copies of such
opinion for each of the other Underwriters, to the effect that the
opinions delivered pursuant to Sections 5(b)(i) and 5(b)(ii) hereof
appear on their face to be appropriately responsive to the requirements
of this Agreement except, specifying the same, to the extent waived by
you, and with respect to the incorporation and legal existence of the
Company, the Securities, this Agreement, the Indenture, the
Registration Statement, the Prospectus, the documents incorporated by
reference and such other related matters as you may require. In giving
such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York and
the federal law of the United States, upon the opinions of counsel
satisfactory to you. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and the
Significant Subsidiaries and certificates of public officials; provided
that such certificates have been delivered to the Underwriters.
(d) At the Closing Time, (i) the Registration Statement and
the Prospectus, as they may then be amended or supplemented, shall
contain all statements that are required to be stated therein under the
1933 Act and the 1933 Act Regulations and in all material respects
shall conform to the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the 1939 Act Regulations, and neither
the Registration Statement nor the Prospectus, as they may then be
amended or supplemented, shall contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(ii) there shall not have been, since the respective dates as of which
information is given in the Registration Statement, any material
adverse change in the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business, (iii) no action, suit or proceeding
shall be pending or, to the knowledge of the Company, threatened
against the Company or any Significant Subsidiary that would be
required to be set forth in the Prospectus other than as set forth
therein and no proceedings shall be pending or, to the knowledge of the
Company, threatened against the Company or any Significant Subsidiary
before or by any government, governmental instrumentality or court,
domestic or foreign, that could result in any material adverse change
in the condition (financial or otherwise), earnings, business affairs
or business prospects of the Company and its subsidiaries,
<PAGE>
20
considered as one enterprise, other than as set forth in the
Prospectus, (iv) the Company shall have complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
at or prior to the Closing Time and (v) the other representations and
warranties of the Company set forth in Section 1(a) shall be accurate
as though expressly made at and as of the Closing Time. At the Closing
Time, you shall have received a certificate of the President or a Vice
President, and the Treasurer or Controller, of the Company, dated as of
the Closing Time, to such effect.
(e) At the time that this Agreement is executed by the
Company, you shall have received from Deloitte & Touche a letter, dated
such date, in form and substance satisfactory to you, together with
signed or reproduced copies of such letter for each of the other
Underwriters, confirming that they are independent public accountants
with respect to the Company within the meaning of the 1933 Act and
applicable published 1933 Act Regulations, and stating in effect that:
(i) in their opinion, the audited financial
statements and the related financial statement schedules
included or incorporated by reference in the Registration
Statement and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
1933 Act and the 1934 Act and the published rules and
regulations thereunder;
(ii) on the basis of procedures (but not an
examination in accordance with generally accepted auditing
standards) consisting of a reading of the unaudited interim
consolidated financial statements of the Company for the
nine-month periods ended October 31, 1994 and October 31,
1995, included or incorporated by reference in the
Registration Statement and the Prospectus (collectively, the
"10-Q Financials"), a reading of the latest available
unaudited interim consolidated financial statements of the
Company, a reading of the minutes of all meetings of the
stockholders and directors of the Company and its subsidiaries
since February 1, 1995, inquiries of certain officials of the
Company and its subsidiaries responsible for financial and
accounting matters with respect to the changes in the
financial statement items after October 31, 1995 performed at
the request of the Company, and such other inquiries and
procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(A) the 10-Q Financials incorporated by
reference in the Registration Statement and the
Prospectus do not comply as to form in all material
respects with the accounting requirements of the 1934
Act and the 1934 Act Regulations applicable to
unaudited financial statements included in Form 10-Q
or are not in conformity with
<PAGE>
21
generally accepted accounting principles applied on a
basis substantially consistent with that of the
audited financial statements included or incorporated
by reference in the Registration Statement and the
Prospectus;
(B) at November 30, 1995 and at a specified
date not more than five days prior to the date of
this Agreement, there was any change in the common
stock of the Company and its subsidiaries or any
decrease in the consolidated net current assets or
consolidated net assets of the Company and its
subsidiaries or any increase in the long-term debt of
the Company and its subsidiaries, in each case as
compared with amounts shown in the October 31, 1995
unaudited consolidated balance sheet included in the
Registration Statement, except in each case for
changes, decreases or increases that the Registration
Statement discloses have occurred or may occur; or
(C) for the period from November 1, 1995 to
November 30, 1995 and for the period from December 1,
1995 to a specified date not more than five days
prior to the date of this Agreement, there were any
decreases in consolidated net sales or in the total
or per share amounts of consolidated net income, in
each case as compared with the comparable period in
the preceding year, except in each case for any
decreases that the Registration Statement discloses
have occurred or may occur;
(iii) based upon the procedures set forth in clause
(ii) above and a reading of the consolidated financial
statements and financial statement schedules included in the
Registration Statement and a reading of the financial
statements, from which certain of such data were derived,
nothing has come to their attention that gives them reason to
believe that the consolidated financial statements and
financial statement schedules included in the Registration
Statement do not comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations; and
(iv) in addition to the procedures referred to in
clause (ii) above, they have performed other specified
procedures, not constituting an audit, with respect to certain
amounts, percentages, numerical data and financial information
appearing in the Registration Statement, which have previously
been specified by you and which shall be specified in such
letter, and have compared certain of such items with, and have
found such items to be in agreement with, the accounting and
financial records of the Company.
<PAGE>
22
(f) At the Closing Time, you shall have received from Deloitte
& Touche a letter, in form and substance satisfactory to you and dated
as of the Closing Time, to the effect that they reaffirm the statements
made in the letter furnished pursuant to Section 5(e), except that the
specified date referred to shall be a date not more than five days
prior to the Closing Time.
(g) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Time, there shall not have been any
downgrading, nor any notice given of any intended or potential
downgrading or of a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities, including the Securities, by any "nationally
recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the 1933 Act.
(h) At the Closing Time, counsel for the Underwriters shall
have been furnished with all such documents, certificates and opinions
as they may reasonably request for the purpose of enabling them to pass
upon the issuance and sale of the Securities as contemplated in this
Agreement and the matters referred to in Section 5(c) and in order to
evidence the accuracy and completeness of any of the representations,
warranties or statements of the Company, the performance of any of the
covenants of the Company, or the fulfillment of any of the conditions
herein contained; and all proceedings taken by the Company at or prior
to the Closing Time in connection with the authorization, issuance and
sale of the Securities as contemplated in this Agreement shall be
satisfactory in form and substance to you and to counsel for the
Underwriters.
If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement, this Agreement may
be terminated by you on notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party to
any other party, except as provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 6, 7 and 8 shall remain in effect.
Section 6. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including all
documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to
<PAGE>
23
make the statements therein not misleading or arising out of an untrue
statement or alleged untrue statement of a material fact contained in
any preliminary prospectus supplement or the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including fees and disbursements of counsel chosen by you), reasonably
incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") expressly for use in the Registration Statement
(or any amendment thereto) or any preliminary prospectus supplement or the
Prospectus (or any amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity agreement in Section 6(a),
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus supplement or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through you
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus supplement or the Prospectus (or any amendment or
supplement thereto).
<PAGE>
24
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 6(a) above, counsel to the indemnified parties shall be selected by
Merrill Lynch, and, in the case of parties indemnified pursuant to Section 6(b)
above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. An indemnifying party may participate at its own expense in
the defense of any such action. In no event shall the indemnifying party or
parties be liable for fees and expenses of more than one counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Section 7. Contribution. If the indemnification provided for
in Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the
<PAGE>
25
one hand and the Underwriters on the other hand from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus bear to the aggregate
initial public offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
<PAGE>
26
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Securities set forth opposite their
respective names in Schedule A hereto and not joint.
Section 8. Representations, Warranties and Agreements to
Survive Delivery. The representations, warranties, indemnities, agreements and
other statements of the Company or its officers set forth in or made pursuant to
this Agreement will remain operative and in full force and effect regardless of
any investigation made by or on behalf of the Company, any Underwriter or any
person who controls the Company or any Underwriter within the meaning of Section
15 of the 1933 Act and will survive delivery of and payment for the Securities.
Section 9. Termination of Agreement. (a) You may terminate
this Agreement, by notice to the Company, at any time at or prior to the Closing
Time (i) if there has been, since the respective dates as of which information
is given in the Prospectus, any material adverse change in the condition
(financial or otherwise), earnings, business affairs or business prospects of
the Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or any
outbreak of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which on the financial markets of the United States is such as to make
it, in your judgment, impracticable to market the Securities or enforce
contracts for the sale of the Securities or (iii) if trading in any securities
of the Company has been suspended by the Commission or the National Association
of Securities Dealers, Inc., or if trading generally on either the American
Stock Exchange or the New York Stock Exchange or in the over-the-counter market
has been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by such exchange or
by order of the Commission, the National Association of Securities Dealers, Inc.
or any other governmental authority or (iv) if a banking moratorium has been
declared by either federal, New York or North Carolina authorities. As used in
<PAGE>
27
this Section 9(a), the term "Prospectus" means the Prospectus in the form first
used to confirm sales of the Securities.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party,
except to the extent provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 6, 7 and 8 shall remain in effect.
(c) This Agreement may also terminate pursuant to the provisions of Section
2, with the effect stated in such Section.
Section 10. Default by One or More of the Underwriters. If one
or more of the Underwriters shall fail at the Closing Time to purchase the
Securities that it or they are obligated to purchase pursuant to this Agreement
(the "Defaulted Securities"), you shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms set forth in this Agreement; if, however, the non-defaulting Underwriters
have not completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities
does not exceed 10% of the aggregate principal amount of the Securities
to be purchased pursuant to this Agreement, each non-defaulting
Underwriter shall be obligated to purchase the full amount thereof in
the proportions that their respective Securities underwriting
obligation proportions bear to the underwriting obligations of all
non-defaulting Underwriters; or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Securities to be
purchased pursuant to this Agreement, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a
termination of this Agreement, either the non-defaulting Underwriters or the
Company shall have the right to postpone the Closing Time for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used
herein, the term "Underwriter" includes any person substituted for a Underwriter
under this Section 10.
<PAGE>
28
Section 11. Notices. All notices and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered, mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to you, c/o
Merrill Lynch, Pierce, Fenner & Smith Incorporated, at Merrill Lynch World
Headquarters, North Tower, World Financial Center, New York, New York 10281,
attention of Curtis McWilliams; notices to the Company shall be directed to it
at Lowe's Companies, Inc., P.O. Box 1111, North Wilkesboro, North Carolina
28656, attention of Kenneth A. Neal.
Section 12. Parties. This Agreement herein set forth is made
solely for the benefit of the several Underwriters, the Company and, to the
extent expressed, any person who controls the Company or any of the Underwriters
within the meaning of Section 15 of the 1933 Act, and the directors of the
Company, its officers who have signed the Registration Statement, and their
respective executors, administrators, successors and assigns and, subject to the
provisions of Section 10, no other person shall acquire or have any right under
or by virtue of this Agreement. The term "successors and assigns" shall not
include any purchaser, as such purchaser, from any of the several Underwriters
of the Securities. All of the obligations of the Underwriters hereunder are
several and not joint.
Section 13. Representation of Underwriters. Merrill Lynch will
act for the several Underwriters in connection with the transactions
contemplated by this Agreement, and any action under or in respect of this
Agreement taken by Merrill Lynch will be binding upon all Underwriters.
Section 14. Governing Law and Time. This Agreement shall be governed by the
laws of the State of New York. Specified times of the day refer to New York City
time.
Section 15. Counterparts. This Agreement may be executed in
one or more counterparts, and when a counterpart has been executed by each
party, all such counterparts taken together shall constitute one and the same
agreement.
------------------------------
<PAGE>
29
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
LOWE'S COMPANIES, INC.
By /s/ Kenneth A. Neal
Kenneth A. Neal
Assistant Treasurer
CONFIRMED AND ACCEPTED as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS INC.
MONTGOMERY SECURITIES
By: Merrill Lynch, Pierce, Fenner & Smith Incorporated
By /s/ Curtis McWilliams
Curtis McWilliams
Managing Director
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Underwriter Securities
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated..........................................................$30,000,000
Goldman, Sachs & Co.................................................................. 25,000,000
Lehman Brothers Inc.................................................................. 25,000,000
Montgomery Securities................................................................ 20,000,000
----------
Total
$ 100,000,000
</TABLE>
<PAGE>
SCHEDULE B
Dated December 13, 1995
LOWE'S COMPANIES, INC.
6-3/8% Senior Notes Due 2005
Principal amount to be issued: $100,000,000
Current ratings: None
Interest rate: 6-3/8%, payable:
Interest accrues from: December 18, 1995
Date of maturity: December 15, 2005
Redemption provisions: None
Sinking fund requirements: None
Initial public offering price: 99.605% of the principal amount plus accrued
interest from December 18, 1995.
Purchase price: 98.955% of the principal amount plus accrued interest from
December 18, 1995 (payable in immediately available funds).
Closing date, time and location: December 18, 1995, 10:00 A.M., New York
City time, at
Shearman & Sterling, 599 Lexington Avenue, New York, New York
Delayed delivery contracts: Not authorized
Listing requirement: None
Other terms and conditions:
LOWE'S COMPANIES, INC.
AND
THE FIRST NATIONAL BANK OF CHICAGO, Trustee
Amended and Restated Indenture
Dated as of December 1, 1995
<PAGE>
Reconciliation and tie between
the Trust Indenture Act of 1939
and Amended and Restated Indenture,
dated as of December 1, 1995*
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
Section 310(a)(1)...............................................................................................609
(a)(2).................................................................................................609
(a)(3)......................................................................................Not Applicable
(a)(4)......................................................................................Not Applicable
(a)(5)............................................................................................608, 610
(b)...............................................................................................608, 610
(c).........................................................................................Not Applicable
Section 311(a)..................................................................................................613
(b)....................................................................................................613
Section 312(a)..........................................................................................701, 702(a)
(b).................................................................................................702(b)
(c)....................................................................................................703
Section 313(a)..................................................................................................703
(b)....................................................................................................703
(c)....................................................................................................703
(d)....................................................................................................703
Section 314(a)............................................................................................704, 1005
(b).........................................................................................Not Applicable
(c)(1).................................................................................................102
(c)(2).................................................................................................102
(c)(3)......................................................................................Not Applicable
(d).........................................................................................Not Applicable
(e)....................................................................................................102
(f).........................................................................................Not Applicable
Section 315(a)..................................................................................................601
(b)....................................................................................................602
(c)....................................................................................................601
(d)....................................................................................................601
(e)....................................................................................................514
Section 316(a)..................................................................................................101
(a)(1)(A)..............................................................................................512
(a)(1)(B)..............................................................................................513
(a)(2)......................................................................................Not Applicable
(b)....................................................................................................508
Section 317(a)(1)...............................................................................................503
(a)(2).................................................................................................504
(b)...................................................................................................1003
Section 318(a)..................................................................................................107
(c)....................................................................................................107
- ---------------------
</TABLE>
<PAGE>
*This table shall not, for any purpose, be deemed to be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE ONE -
DEFINITIONS AND OTHER
<S> <C>
PROVISIONS OF GENERAL APPLICATION............................................................................... 1
Section 101. Definitions............................................................................ 1
Section 102. Compliance Certificates and Opinions................................................... 8
Section 103. Form of Documents Delivered to Trustee................................................. 8
Section 104. Acts of Holders; Record Dates.......................................................... 9
Section 105. Notices, Etc., to Trustee and Company.................................................. 10
Section 106. Notice to Holders; Waiver.............................................................. 11
Section 107. Conflict with Trust Indenture Act...................................................... 11
Section 108. Effect of Headings and Table of Contents............................................... 11
Section 109. Successors and Assigns................................................................. 11
Section 110. Separability Clause.................................................................... 12
Section 111. Benefits of Indenture.................................................................. 12
Section 112. Governing Law.......................................................................... 12
Section 113. Legal Holidays......................................................................... 12
ARTICLE TWO -
SECURITY FORMS.................................................................................................. 12
Section 201. Forms of Securities.................................................................... 12
Section 202. Form of Trustee's Certificate of Authentication........................................ 13
Section 203. Securities in Global Form.............................................................. 13
ARTICLE THREE -
THE SECURITIES.................................................................................................. 13
Section 301. Amount Unlimited; Issuable in Series................................................... 13
Section 302. Denominations.......................................................................... 15
Section 303. Execution, Authentication, Delivery and Dating......................................... 15
Section 304. Temporary Securities................................................................... 17
Section 305. Registration, Registration of Transfer and Exchange and
Book-Entry Securities........................................................... 18
Section 306. Mutilated, Destroyed, Lost and Stolen Securities....................................... 20
Section 307. Payment of Interest; Interest Rights Preserved......................................... 21
Section 308. Persons Deemed Owners.................................................................. 22
Section 309. Cancellation........................................................................... 22
Section 310. Computation of Interest................................................................ 23
ARTICLE FOUR -
SATISFACTION AND DISCHARGE...................................................................................... 23
Section 401. Satisfaction and Discharge of Indenture................................................ 23
Section 402. Application of Trust Money............................................................. 24
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
ARTICLE FIVE -
REMEDIES........................................................................................................ 24
Section 501. Events of Default...................................................................... 24
Section 502. Acceleration of Maturity; Rescission and Annulment..................................... 27
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee......................................................................... 28
Section 504. Trustee May File Proofs of Claim....................................................... 29
Section 505. Trustee May Enforce Claims Without Possession of Securities............................ 30
Section 506. Application of Money Collected......................................................... 30
Section 507. Limitation on Suits.................................................................... 30
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest............................................................ 31
Section 509. Restoration of Rights and Remedies..................................................... 31
Section 510. Rights and Remedies Cumulative......................................................... 31
Section 511. Delay or Omission Not Waiver........................................................... 32
Section 512. Control by Holders..................................................................... 32
Section 513. Waiver of Past Defaults................................................................ 32
Section 514. Undertaking for Costs.................................................................. 33
Section 515. Waiver of Stay or Extension Laws....................................................... 33
ARTICLE SIX -
THE TRUSTEE..................................................................................................... 34
Section 601. Certain Duties and Responsibilities.................................................... 34
Section 602. Notice of Defaults..................................................................... 35
Section 603. Certain Rights of Trustee.............................................................. 35
Section 604. Not Responsible for Recitals or Issuance of Securities................................. 36
Section 605. May Hold Securities.................................................................... 37
Section 606. Money Held in Trust.................................................................... 37
Section 607. Compensation and Reimbursement......................................................... 37
Section 608. Disqualification; Conflicting Interests................................................ 37
Section 609. Corporate Trustee Required; Eligibility................................................ 38
Section 610. Resignation and Removal; Appointment of Successor...................................... 38
Section 611. Acceptance of Appointment by Successor................................................. 39
Section 612. Merger, Conversion, Consolidation or Succession to Business............................ 40
Section 613. Preferential Collection of Claims Against Company...................................... 41
Section 614. Appointment of Authenticating Agent.................................................... 41
ARTICLE SEVEN -
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY.......................................................................................... 43
Section 701. Company to Furnish Trustee Names and Addresses of
Holders......................................................................... 43
Section 702. Preservation of Information; Communications to Holders................................. 43
Section 703. Reports by Trustee..................................................................... 43
Section 704. Reports by Company..................................................................... 44
Section 705. Holders' Meetings...................................................................... 44
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
ARTICLE EIGHT -
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE................................................................................... 46
Section 801. Company May Consolidate, Etc., Only on Certain Terms................................... 46
Section 802. Successor Substituted.................................................................. 47
ARTICLE NINE -
SUPPLEMENTAL INDENTURES......................................................................................... 48
Section 901. Supplemental Indentures Without Consent of Holders..................................... 48
Section 902. Supplemental Indentures With Consent of Holders........................................ 49
Section 903. Execution of Supplemental Indentures................................................... 50
Section 904. Effect of Supplemental Indentures...................................................... 51
Section 905. Conformity with Trust Indenture Act.................................................... 51
Section 906. Reference in Securities to Supplemental Indentures..................................... 51
Section 907. Notice of Supplemental Indenture....................................................... 51
ARTICLE TEN -
COVENANTS....................................................................................................... 51
Section 1001. Payment of Principal, Premium and Interest............................................. 51
Section 1002. Maintenance of Office or Agency........................................................ 52
Section 1003. Money for Securities Payments to Be Held in Trust...................................... 52
Section 1004. Corporate Existence.................................................................... 53
Section 1005. Statement by Officers as to Default.................................................... 54
Section 1006. Maintenance of Properties.............................................................. 54
Section 1007. Payment of Taxes and Other Claims...................................................... 54
Section 1008. Restrictions on Debt................................................................... 54
Section 1009. Restrictions on Sales and Leasebacks................................................... 56
Section 1010. Waiver of Certain Covenants............................................................ 57
ARTICLE ELEVEN -
REDEMPTION OF SECURITIES........................................................................................ 57
Section 1101. Applicability of Article............................................................... 57
Section 1102. Election to Redeem; Notice to Trustee.................................................. 57
Section 1103. Selection by Trustee of Securities to Be Redeemed...................................... 58
Section 1104. Notice of Redemption................................................................... 58
Section 1105. Deposit of Redemption Price............................................................ 59
Section 1106. Securities Payable on Redemption Date.................................................. 59
Section 1107. Securities Redeemed in Part............................................................ 60
ARTICLE TWELVE -
SINKING FUNDS................................................................................................... 60
Section 1201. Applicability of Article............................................................... 60
Section 1202. Satisfaction of Sinking Fund Payments with Securities.................................. 60
Section 1203. Redemption of Securities for Sinking Fund.............................................. 61
ARTICLE THIRTEEN -
</TABLE>
-iii-
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
REPAYMENT OF SECURITIES
AT OPTION OF HOLDERS............................................................................................ 61
Section 1301. Applicability of Article............................................................... 61
Section 1302. Notice of Repayment Date............................................................... 61
Section 1303. Deposit of Repayment Price............................................................. 62
Section 1304. Securities Payable on Repayment Date................................................... 62
Section 1305. Securities Repaid in Part.............................................................. 62
ARTICLE FOURTEEN -
CONVERSION OF SECURITIES........................................................................................ 63
Section 1401. General................................................................................ 63
Section 1402. Right to Convert....................................................................... 63
Section 1403. Manner of Exercise of Conversion Privilege; Delivery of
Common Stock; No Adjustment for Interest or Dividends........................... 63
Section 1404. Cash Payments in Lieu of Fractional Shares............................................. 64
Section 1405. Conversion Price Adjustments; Effect of Reclassification,
Mergers, Consolidations and Sales of Assets..................................... 65
Section 1406. Taxes on Shares Issued................................................................. 69
Section 1407. Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock........................................... 69
Section 1408. Responsibility of Trustee.............................................................. 69
Section 1409. Covenant to Reserve Shares............................................................. 70
Section 1410. Other Conversions...................................................................... 70
ARTICLE FIFTEEN -
DEFEASANCE AND COVENANT DEFEASANCE.............................................................................. 70
Section 1501. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance............................................... 70
Section 1502. Defeasance and Discharge............................................................... 70
Section 1503. Covenant Defeasance.................................................................... 71
Section 1504. Conditions to Defeasance or Covenant Defeasance........................................ 71
Section 1505. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions................................... 73
Section 1506. Reinstatement.......................................................................... 74
ARTICLE SIXTEEN -
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS............................................................................ 74
Section 1601. Immunity of Incorporators, Stockholders, Officers and
Directors....................................................................... 74
</TABLE>
-iv-
<PAGE>
INDENTURE, dated as of December 1, 1995, between LOWE'S COMPANIES,
INC., a corporation duly organized and existing under the laws of the State of
North Carolina (herein called the "Company"), having its principal office at
Highway 268 East, North Wilkesboro, North Carolina 28656, and THE FIRST NATIONAL
BANK OF CHICAGO, a national banking association duly organized and existing
under the laws of the United States, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
unsubordinated debentures, notes or other evidences of indebtedness (herein
called the "Securities"), to be issued in one or more series as in this
Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE -
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) 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
<PAGE>
(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 Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable, at any date as of which the amount thereof is to
be determined, the total net amount of rent required to be paid by such Person
under such lease during the remaining term thereof (excluding any subsequent
renewal or other extension options held by the lessee), discounted from the
respective due dates thereof to such date at the rate of 10% per annum
compounded annually. The net amount of rent required to be paid under any such
lease for any such period shall be the amount of the rent payable by the lessee
with respect to such period, after excluding amounts required to be paid on
account of maintenance and repairs, insurance, taxes, assessments, water rates
and similar charges and contingent rents (such as those based on sales). In the
case of any lease which is terminable the lessee upon the payment of a penalty,
such net amount shall also include the amount of such penalty, but no rent shall
be considered as required to be paid under such lease subsequent to the first
date upon which it may be so terminated.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper of general circulation in the
relevant area, printed in the English language and customarily published on each
Business Day therein.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board or any director or directors
and/or officer or officers of the Company to whom that board or committee shall
have duly delegated its authority.
"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, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
-2-
<PAGE>
"Capital Stock", as applied to the stock of any corporation, means the
capital stock of every class whether now or hereafter authorized, regardless of
whether such capital stock shall be limited to a fixed sum or percentage with
respect to the rights of the holders thereof to participate in dividends and in
the distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of such corporation.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Stock" means any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities, and (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the most recent balance sheet of the Company
and its consolidated subsidiaries and computed in accordance with generally
accepted accounting principles.
"Conversion Price" means with respect to any series of Securities which
are convertible into Common Stock, the price per share of Common Stock at which
the Securities of such series are so convertible as set forth in the Board
Resolution with respect to such series (or in any supplemental indenture entered
into pursuant to Section 901(9) with respect to such series), as the same may be
adjusted from time to time in accordance with Section 1405 (or such supplemental
indenture pursuant to Section 1401).
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at One First National Plaza, Suite 0126, Chicago, Illinois 60670-0126,
Attention: Corporate Trust Administration.
"Corporation" includes corporations, associations, companies and
business trusts.
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"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of a Global Security, a clearing agency
registered under the Securities Exchange Act of 1934, as amended, or any
successor thereto, which shall in either case be designated by the Company
pursuant to Section 301 or 305 until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, "Depositary"
as used with respect to the Securities of any such series shall mean the
Depositary with respect to the Securities of that series.
"Event of Default" has the meaning specified in Section 501.
"Funded Debt" means all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the amount thereof is
to be determined or having a maturity of less than 12 months but by its terms
being renewable or extendible beyond 12 months from such date at the option of
the borrower.
"Global Security or Securities" means one or more fully registered
Securities in global form evidencing all or a part of a series of Securities
issued to the Depositary for such series or its nominee or registered in the
name of the Depositary or its nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or by repayment or otherwise.
"Mortgage" means and includes any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance.
"Officers' Certificate" means a certificate signed by at least two
officers of the Company, one signature being that of the Chairman of the Board,
the President or a Vice President, and
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the other signature being that of the Treasurer, an Assistant Treasurer, 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, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(iv) Securities with respect to which the Company has
effected defeasance as provided in Article Fifteen;
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, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502, and (b) Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
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"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities 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", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" means any stock of any class of the Company which has
a preference over Common Stock in respect of dividends or of amounts payable in
the event of any voluntary or involuntary liquidation, dissolution or winding up
of the Company and which is not mandatorily redeemable or repayable, or
redeemable or repayable at the option of the Holder, otherwise than in shares of
Common Stock or Preferred Stock of another class or series or with the proceeds
of the sale of Common Stock or Preferred Stock.
"Principal Property" means any building, structure or other facility,
together with the land upon which it is erected and fixtures comprising a part
thereof, used primarily for selling home improvement products or the
manufacturing, warehousing or distributing of such products, owned or leased by
the Company or any Subsidiary of the Company.
"Redemption Date", when used with respect to any Security to be
redeemed, 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.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"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.
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"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee customarily performing corporate trust functions.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal or such installment of
principal, premium, if any, or interest on such Security is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has 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.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"United States" means the United States of America.
"U.S. Government Obligations" has the meaning specified in Section
1504.
"Vice President", when used with respect to the Company, means any vice
president, whether or not designated by a number or a word or words added before
or after the title "vice president".
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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 the certificate
provided for in Section 1005) shall include:
(1) A statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion are based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
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should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than 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 ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series made by any Person in
respect of any such action, or in the case of any such vote, prior to such vote,
the record date for any such action or vote shall
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be the 30th day (or, if later, the date of the most recent list of Holders
required to be provided pursuant to Section 701) prior to such first
solicitation or vote, as the case may be. With regard to any record date for
action to be taken by the Holders of one or more series of Securities, only the
Holders of Securities of such series on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
(f) Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount. Any notice given or
action taken by a Holder or its agents with regard to different parts of such
principal amount pursuant to this paragraph shall have the same effect as if
given or taken by separate Holders of each such different part.
(g) Without limiting the generality of the foregoing, unless otherwise
specified pursuant to Section 301 or pursuant to one or more indentures
supplemental hereto, a Holder, including a Depositary that is the Holder of a
Global Security, may make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken by
Holders, and a Depositary that is the Holder of a Global Security may provide
its proxy or proxies to the beneficial owners of interests in any such Global
Security through such Depositary's standing instructions and customary
practices.
(h) The Trustee shall fix a record date for the purpose of determining
the Persons who are beneficial owners of interests in any Global Security held
by a Depositary entitled under the procedures of such Depositary to make, give
or take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
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
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(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument, Attention:
Secretary, or at any other address previously furnished in writing to
the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at 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 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. Any notice to a Holder which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not such Holder receives such notice. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impracticable to give
notice of any event to Holders by mail when such notice is required to be given
pursuant to any provision of this Indenture, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture
Act through the operation of Section 318(c) thereof, such imposed duties shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or shall be
deemed to be so excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
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Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture; provided that this
Section 111 shall not limit the rights of any Holder of a Global Security to
give any notice or take any action, or appoint any agents, with regard to any
part or different parts of the principal amount of such Global Security pursuant
to Section 104.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York and for all purposes shall be
governed by and construed in accordance with the laws of said state without
regard to the conflicts of laws and rules of said state.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date or Stated Maturity of any Security shall not be
a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of interest or
principal (and premium, if any) need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made on
the Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment
date or at the Stated Maturity, provided that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date or Stated Maturity, as the case may be.
ARTICLE TWO -
SECURITY FORMS
Section 201. Forms of Securities.
The Securities of each series shall be in such form or forms (including
global form) as shall be established by or pursuant to a Board Resolution or in
one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with any law or with any rules made pursuant thereto or the
rules of any securities exchange or as may, consistently herewith, be determined
by the officers
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executing such Securities, as evidenced by their execution of such Securities.
If the form of Securities of any series is established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved or
may be produced in any other manner permitted by the rules of any securities
exchange upon which the Securities may be listed and (with respect to Global
Securities of any Series) the rules of the Depositary, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
Section 202. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
The First National Bank of Chicago, as Trustee
By
Authorized Officer
Section 203. Securities in Global Form.
If any Security of a series is issuable in global form, such Security
may provide that it shall represent the aggregate amount of Outstanding
Securities from time to time endorsed thereon and also may provide that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced 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 and in
such manner as shall be specified in such Security. Any instructions by the
Company with respect to a Security in global form, after its initial issuance,
shall be in writing but need not comply with Section 102.
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.
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The Securities may be issued in one or more series. All Securities of
each series issued under this Indenture shall in all respects be equally and
ratably entitled to the benefits hereof with respect to such series without
preference, priority or distinction on account of the actual time of the
authentication and delivery or Maturity of the Securities of such series. There
shall be established in or pursuant to a Board Resolution, and, to the extent
not set forth therein, set forth in an Officers' Certificate, or established in
one or more indentures supplemental hereto, prior to the issuance of Securities
of any series:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of that series pursuant to Section 304, 305, 306, 906, 1107,
1305 or 1403);
(3) the date or dates on which the principal and premium,
if any, of the Securities of the series is payable;
(4) the rate or rates, or the method of determination thereof,
at which the Securities of the series shall bear interest, if any, the
date or dates from which such interest shall accrue, the Interest
Payment Dates on which such interest shall be payable and the Regular
Record Date for the interest payable on any Interest Payment Date;
(5) if other than the Corporate Trust Office, the place or
places where the principal of (and premium, if any) and interest on
Securities of the series shall be payable;
(6) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities of the
series shall be issuable;
(9) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
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(10) if the Securities of the series shall be issued in
whole or in part in the form of a Global Security or Securities, the
Depositary for such Global Security or Securities;
(11) any addition to or change in the Events of Default
which applies to any Securities of the series;
(12) any addition to or change in the covenants set forth
in Article Ten which applies to Securities of the series;
(13) if the Securities of the series are convertible into
Common Stock, the Conversion Price therefor, the period during which
such Securities are convertible and any terms and conditions for the
conversion of such Securities which differ from Article Fourteen;
(14) the application, if any, of Section 1502 or 1503 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 Fifteen; and
(15) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officers' Certificate, to the
extent applicable, or in any such indenture supplemental hereto. All Securities
of any one series need not be issued at the same time and, unless otherwise
provided, a series may be reopened, without the consent of the Holders, for
issuance of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Board Resolution or
the Officers' Certificate setting forth the terms of the series.
Section 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents and attested
by its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile.
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Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, and the Trustee shall authenticate
and deliver such Securities upon Company Order. If all the Securities of any one
series are not to be originally issued at one time and if a Board Resolution
relating to such Securities shall so permit, such Company Order may set forth
procedures (acceptable to the Trustee) for the issuance and authentication of
such Securities.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Board Resolution or Officers'
Certificate otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to this Section 303 or prior to
the time of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such
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series to be issued and such documents reasonably contemplate the issuance of
all Securities of such series.
Unless otherwise provided in the form of Security for any series, each
Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized officer, 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.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in the form of one or more Global
Securities, then the Company shall execute and the Trustee shall, in accordance
with this Section and the Company Order with respect to such series,
authenticate and deliver one or more Global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount of
all of the Securities of such series having the same terms issued and not yet
canceled, (ii) shall be registered in the name of the Depositary for such Global
Security or Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
instructions and (iv) shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for Securities in
definitive registered form, this Security may not be transferred except as a
whole by the Depositary to the nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary."
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities. Every such temporary Security
shall be executed by the Company and shall be authenticated and delivered by the
Trustee upon the same conditions and in substantially the same manner, and with
the same effect, as the definitive Security in lieu of which it is issued.
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
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series the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal amount of definitive Securities of the
same series of authorized denominations. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
Section 305. Registration, Registration of Transfer and Exchange and
Book-Entry Securities.
The Company shall cause to be kept at one of its offices or agencies
maintained pursuant to Section 1002 a register (the register maintained in such
office being herein sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities. The
Person responsible for the maintenance of the Security Register is referred to
herein as the "Security Registrar." The Trustee is hereby initially appointed
Security Registrar for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency 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 Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount.
At the option of the Holder, Securities of any series (except Global
Securities) may be exchanged for other Securities of the same series (except
Global Securities) of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Security Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107, 1305 or 1403 not involving any
transfer.
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The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding any other provision of this Section 305, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
a series shall no longer be registered or in good standing under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, the Company shall execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, shall authenticate and deliver Securities
of such series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such event
the Company shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, shall
authenticate and deliver, Securities of such series in definitive registered
form without coupons, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such series, in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 301 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series in definitive registered form on such terms as are
acceptable to the Company and such Depositary. Thereupon, the Company shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new Security
or Securities of the same series, of any authorized denomination as
requested by such Person, in an
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aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of Securities authenticated and delivered pursuant to Clause (i)
above.
Upon the exchange of a Global Security for Securities in definitive
registered form, in authorized denominations, such Global Security shall be
canceled by the Trustee. Securities in definitive registered form issued in
exchange for a Global Security pursuant to this Section 305 shall be registered
in such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall not be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions. The Trustee shall,
at Company expense, deliver such Securities to or as directed by the Persons in
whose names such Securities are so registered.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, together with
such other security or indemnity as may be reasonably required by the Trustee to
save it harmless, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security, subject to satisfaction of
the foregoing conditions.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the
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Company, whether or not the destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. The Company and the Trustee understand that interest on any
Global Security will be disbursed or credited by the Depositary to the Persons
having ownership thereof pursuant to a book entry or other system maintained by
the Depositary.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or Clause (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at 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 so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective
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Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such 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 Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
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 Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Section 309. Cancellation.
Unless otherwise specified pursuant to Section 301(7) for Securities of
any series all Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly canceled by the Trustee, except that
if a Global Security is so surrendered, the Company shall execute and the
Trustee shall authenticate and deliver to the Depositary for such Global
Security, without service charge, a new Global Security or Securities in a
denomination equal to and in exchange for the portion of the Global Security so
surrendered not to be paid, redeemed, repaid or registered for transfer or
exchange or for credit. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of in accordance with its customary procedures and a
certificate
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of disposition shall be delivered to the Company, unless, by a Company Order,
the Company shall direct the canceled Securities be returned to it.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR -
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
Upon Company Request, this Indenture shall cease to be of further
effect with respect to the Securities of a particular series (except as to any
surviving rights to convert Securities into Common Stock, or rights of
registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such Securities, when:
(1) either:
(A) all Securities of such series theretofore
authenticated and delivered (other than (i) Securities which
have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year, under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be irrevocably deposited
with the Trustee as trust funds in trust for the purpose sums
sufficient to pay and discharge the entire indebtedness on
such
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Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest
to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be; and
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company with respect to such Securities;
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 with respect to the Securities of such
series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to
the Securities of a particular series, the obligations of the Company to the
Trustee under Section 607, the obligations, if any, of the Trustee to any
Authenticating Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003, in each case with respect to such Securities, shall survive.
Notwithstanding the cessation, termination and discharge of all obligations,
covenants and agreements of the Company under this Indenture with respect to any
series of Securities, the obligations of the Company to the Trustee under
Section 607, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive with respect to such series of
Securities.
Section 402. Application of Trust Money.
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 and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee. All money deposited with the Trustee pursuant to Section 401 (and held
by it or any Paying Agent) for the payment of Securities subsequently converted
into Common Stock shall be returned to the Company upon Company Request.
ARTICLE FIVE -
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment,
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decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company or any
Subsidiary (including a default with respect to Securities of any
series other than that series) or under any mortgage, indenture
(including this Indenture) or instrument under which there may be
issued or by which there may be secured or evidenced any indebtedness
for money borrowed by the Company or any Subsidiary (each such bond,
debenture, note, evidence of indebtedness, mortgage, indenture or
instrument being referred to as a "Loan Document"), whether such
indebtedness now exists or shall hereafter be created, which default
shall constitute a failure to pay any portion of the principal of such
indebtedness when due and payable after the expiration of any
applicable grace period with respect thereto or shall have resulted in
such indebtedness becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable,
without such indebtedness having been discharged or such acceleration
having been rescinded or annulled within a period of 10 days after
there shall have 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 and requiring the
Company to cause such indebtedness to be discharged or such
acceleration to be rescinded or annulled and stating that such notice
is a "Notice of Default" hereunder, if the aggregate outstanding
principal amount of indebtedness under the Loan Document with respect
to which such default or acceleration has occurred exceeds $10 million;
provided, however, that if such default under such Loan Document shall
be cured by the Company or be waived by the holders
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of such indebtedness or if such acceleration shall be rescinded or
annulled, in each case as may be permitted by such Loan Document, then
the Event of Default hereunder by reason of such default shall be
deemed likewise to have been thereupon cured or waived; and provided,
further, that, subject to the provisions of Sections 601 and 602, the
Trustee shall not be deemed to have knowledge of such default or
acceleration unless either (A) a Responsible Officer of the Trustee
shall have actual knowledge of such default or acceleration or (B) the
Trustee shall have received written notice thereof from the Company,
from any Holder, from the holder of any such indebtedness or from the
trustee under any such mortgage, indenture or other instrument; or
(6) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company or any
Subsidiary in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company or any
Subsidiary a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company or any Subsidiary under any applicable
Federal or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Company or any Subsidiary or of any substantial part of its property,
or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(7) the commencement by the Company or any Subsidiary of a
voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief in
respect of the Company or any Subsidiary in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State law, or the consent by
it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any Subsidiary
or of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due,
or the taking of corporate action by the Company or any Subsidiary in
furtherance of any such action; or
(8) any other Event of Default provided with respect to
Securities of that series.
Upon receipt by the Trustee of any proposed Notice of Default from any
Holder with respect to Securities of a series all or part of which is
represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join in
such proposed Notice of Default, which record date shall be at the close of
business
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on the day the Trustee receives such proposed Notice of Default. The Holders on
such record date, or their duly designated proxies, and only such Persons, shall
be entitled to join in such proposed Notice of Default, whether or not such
Holders remain Holders after such record date; provided, that unless Holders of
at least 25% in principal amount of the Outstanding Securities of such series,
or their proxies, shall have joined in such proposed Notice of Default prior to
the day which is 90 days after such record date, such proposed Notice of Default
shall automatically and without further action by any Holder be canceled and of
no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving (i) after expiration of such 90-day period, a new
proposed Notice of Default identical to a proposed Notice of Default which has
been canceled pursuant to the proviso to the preceding sentence, or (ii) during
any such 90-day period, an additional proposed Notice of Default with respect to
any new or different fact or circumstance permitting the giving of a proposed
Notice of Default with respect to Securities of such series, in either of which
events a new record date shall be established pursuant to the provisions of this
Section 501. Any such proposed Notice of Default shall be considered a Notice of
Default hereunder at such time, if any, that Holders of at least 25% in
principal amount of the Outstanding Securities shall have joined in such
proposed Notice of Default by giving timely notice to the Trustee hereunder.
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 in every such case, the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. Upon payment of said amounts,
all obligations of the Company in respect of payment of principal of the
Securities of such series shall terminate.
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
(A) all overdue interest on all Securities of
that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and any interest thereon
at the rate or rates prescribed therefor in such Securities,
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(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, with respect to Securities of
a series all or part of which is represented by a Global Security, a record date
shall be established for determining Holders of Outstanding Securities of such
series entitled to join in such notice, which record date shall be at the close
of business on the day the Trustee receives such notice. The Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such notice, whether or not such Holders remain Holders
after such record date; provided, that unless such declaration of acceleration,
or rescission and annulment, as the case may be, shall have become effective by
virtue of the requisite percentage having joined in such notice prior to the day
which is 90 days after such record date, such notice of declaration of
acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving, (i) after expiration of such 90-day period, a new written
notice of declaration of acceleration or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been canceled
pursuant to the proviso to the preceding sentence, or (ii) during any such
90-day period, an additional written notice of declaration of acceleration with
respect to Securities of such series, or an additional written notice of
rescission and annulment of any declaration of acceleration with respect to any
other Event of Default with respect to Securities of such series, in either of
which events a new record date shall be established pursuant to the provisions
of this Section 502.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity thereof,
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(3) default is made in the making or satisfaction of any
sinking fund payment when it becomes due pursuant to the terms of the
securities of any series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
or rates prescribed therefor in such 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, but shall
not be obligated 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 and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series 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 any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to file and prove a
claim for the whole amount of principal, premium 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 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 to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
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No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article of any
series shall be applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, upon presentation of the Securities
of any series and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities of
such series in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Company or to whomsoever
may be lawfully entitled to receive the same as a court of competent
jurisdiction may direct.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of that series;
(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;
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(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or of the Holders of Outstanding Securities of any other series,
or to obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption or repayment at the
option of the Holder, on the Redemption Date or the Repayment Date, as the case
may be) and (if the terms of such Security so provide) to have such Security
converted into Common Stock pursuant to Article Fourteen and to institute suit
for the enforcement of any such payment or conversion, and such rights shall not
be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be 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
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or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 512. Control by Holders.
The Holders of at least 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, expose the Trustee to personal liability or
be unduly prejudicial to Holders not joining therein, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Upon receipt by the Trustee of any such direction with respect to
Securities of a series all or part of which is represented by a Global Security,
a record date shall be established for determining Holders of Outstanding
Securities of such series entitled to join in such direction, which record date
shall be determined in accordance with Section 104(e). The Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such direction, whether or not such Holders remain Holders
after such record date; provided, that unless Holders of at least a majority in
principal amount of the outstanding Securities of such series, or their proxies,
shall have been joined in such direction prior to the day which is 90 days after
such record date, such direction shall automatically and without further action
by any Holder be canceled and of no further effect. Nothing in this paragraph
shall prevent a Holder, or a proxy of a Holder, from giving, (i) after
expiration of such 90-day period, a new direction identical to a direction which
has been canceled pursuant to the provisions to the preceding sentence or (ii)
during any such 90-day period a new direction contrary to or different from such
direction, in either of which events a new record date shall be established
pursuant to the provisions of this Section 512.
Section 513. Waiver of Past Defaults.
By Act delivered to the Company and the Trustee, the Holders of not
less than a majority in principal amount of the Outstanding Securities of any
affected series may on behalf of the
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Holders of all the Securities of such series waive any past default hereunder
with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series or in the payment of any
sinking fund installment with respect to the Securities of such series,
or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to waive any past default
hereunder. If a record date is fixed, the Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to waive any
default hereunder, whether or not such Holders remain Holders after such record
date; provided, that unless such majority in principal amount shall have been
obtained prior to the date which is 90 days after such record date, any such
waiver previously given shall automatically and without further action by any
Holder be canceled and of no further effect.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Trustee, by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount of
the Outstanding Securities of any series, or by any Holder for the enforcement
of the payment of the principal of (or premium, if any) or interest on any
Security on or after the Stated Maturity expressed in such Security (or, in the
case of redemption or repayment at the option of the Holder, on or after the
Redemption Date or Repayment Date, as the case may be, and (if the terms of such
Security so provide) to have such Security converted into Common Stock pursuant
to Article Fourteen).
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent
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that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE SIX -
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provision of this Indenture are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture; and
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(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, 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.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series, as their names and addresses appear in the
Security Register, notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal, premium or interest on
any Security of such series or in the payment of any sinking 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 of the board of directors and/or Responsible Officers of the Trustee
in good faith determine that the withholding of such notice is in the interests
of the Holders of the Securities of such series; and provided, further, that in
the case of any default of the character specified in Section 501(4) with
respect to the Securities 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.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
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(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such 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;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be required to take notice or be
deemed to have notice of any default hereunder (except failure by the
Company to pay principal of or interest on any series of Securities so
long as the Trustee is also acting as Paying Agent for such series of
Securities) unless the Trustee shall be specifically notified in
writing of such default by the Company by the Holders of at least a 10%
in aggregate principal amount of all Outstanding Securities, and all
such notices or other instruments required by this Indenture to be
delivered to the Trustee must, in order to be effective, be delivered
at the principal Corporate Trust Office of the Trustee, and in the
absence of such notice the Trustee may conclusively assume there is no
default except as aforesaid.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof. The Trustee shall not be
deemed to have knowledge of the identity of any Subsidiary unless either (A) a
Responsible Officer of the Trustee shall have actual knowledge thereof or (B)
the Trustee shall have received written notice thereof from the Company or any
Holder.
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Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of Section 310 of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture. To
the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed
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to have a conflicting interest with respect to the Securities of any series by
virtue of being Trustee with respect to the Securities of any particular series
of Securities other than that series or by virtue of being trustee under the
Indenture, dated as of April 15, 1992, between the Company and the Trustee.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 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 Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(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
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or any public officer shall take charge or control of the Trustee or of
its property or affairs for the purpose of rehabilitation, conservation
or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to any or all Securities, or (ii) subject to Section 514,
any Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to any or
all Securities and the appointment of a successor Trustee or Trustees with
respect to such series.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of that or those series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all
Holders of Securities of such series in the manner provided in Section 106. Each
notice of appointment shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or
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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, subject nevertheless to its lien, if any,
provided for in Section 607.
(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 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 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder,
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provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities. In
case any Securities shall not have been authenticated by such predecessor
Trustee, any such successor Trustee may authenticate and deliver such Debt
Securities, 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 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of Section 311 of the Trust Indenture Act regarding the collection of
such claims against the Company (or any such other obligor). A Trustee that has
resigned or been removed shall be subject to and comply with said Section 311 to
the extent required thereby.
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities (which may be an Affiliate of the Company)
which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon registration of transfer or partial redemption or
repayment thereof or pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business and in good standing under the
laws of the United States of America, any State or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of no less than $50,000,000 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 to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding
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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 resign at any
time by giving written notice thereof 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 for such series by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee of such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment thereunder
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.
Except with respect to an Authenticating Agent appointed at the request
of the Company, the Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, pursuant to the
provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series described therein referred
to in the within-mentioned Indenture.
The First National Bank of Chicago, as Trustee
By
As Authenticating Agent
By
As Authenticating Agent
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ARTICLE SEVEN -
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will furnish or
cause to be furnished to the Trustee for the Securities of such Series
(a) semiannually, not more than 15 days after each Regular
Record Date relating to that series (or, if there is no Regular Record
Date relating to that series, on June 30 and December 31), a list, in
such form as such Trustee may reasonably require, of the names and
addresses of the Holders of that series as of such date,
and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that if and so long as the Trustee is Security Registrar with
respect to Securities of a particular series no such list shall be required with
respect to the Securities of such series.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the year
1996, the Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this
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Indenture as may be required pursuant to the Trust Indenture Act if and to the
extent and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission. Delivery of such reports to the
Trustee is for informational purposes only and the Trustee's receipt of such
reports shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
Section 705. Holders' Meetings.
(a) A meeting of Holders of any or all series may be called at any time
and from time to time pursuant to the provisions of this Section 705 for any of
the following purposes:
(1) to give any notice to the Company or to the Trustee for
such series, or to give any directions to the Trustee for such series,
or to consent to the waiving of any default hereunder and its
consequences, or to take any other action authorized to be taken by
Holders pursuant to any of the provisions of ARTICLE FIVE;
(2) to remove the Trustee for such series and appoint a
successor Trustee pursuant to the provisions of Article Six;
(3) to consent to the execution of an indenture or
supplemental indentures hereto pursuant to the provisions of Section
902;
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Outstanding Securities of any one or more or all series, as the
case may be, under any other provision of this Indenture or under
applicable law.
(b) The Trustee for any series may at any time call a meeting of
Holders of such series to take any action specified in paragraph (a) of this
Section 705, to be held at such time or times and at such place or places as the
Trustee for such series shall determine. Notice of
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every meeting of the Holders 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 to Holders of such series in the manner and to the
extent provided in Section 105. Such notice shall be given not less than 20 days
nor more than 90 days prior to the date fixed for the meeting.
(c) In case at any time the company, pursuant to a Board Resolution, or
the Holders of at least 10% in aggregate principal amount of the Outstanding
Securities of a series or of all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of any or all
such series by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 20 days after the receipt of such request, then
the Company or such Holders may determine the time or times and the place or
places for such meetings and may call such meetings to take any action
authorized by giving notice thereof as provided in the preceding paragraph.
(d) to be entitled to vote at any meeting of Holders a Person shall be
(a) a Holder of a Security of the series with respect to which such meeting is
being held or (b) a Person appointed by an instrument in writing as agent or
proxy by such Holder. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee for the series
with respect to which such meeting is being held and its counsel and any
representatives of the Company and its counsel.
(e) Notwithstanding any other provisions of this Indenture, the Trustee
for any series may make such reasonable regulations as it may deem advisable for
any meeting of Holders of such 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.
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 such series as provided in paragraph (c) of this
Section 705, in which case the Company or the Holders 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 a majority
vote of the meeting.
Subject to the provisos in the definition of "Outstanding," at any
meeting each Holder of a Debt Security of the series with respect to which such
meeting is being held or proxy therefor shall be entitled to one vote for each
$1,000 principal amount (or such other amount as shall be specified as
contemplated by Section 301) of Securities of such series held or represented by
him; 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 other than by virtue of Outstanding Securities of such series held
by him or instruments in writing duly designating him as the person to vote on
behalf of Holders of Debt Securities of
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such series. Any meeting of Holders with respect to which a meeting was duly
called pursuant to the provisions of paragraph (b) or (c) of this Section 705
may be adjourned from time to time by a majority of such Holders present and the
meeting may be held as so adjourned without further notice.
(f) Voting. The vote upon any resolution submitted to any meeting of
Holders with respect to which such meeting is being held shall be by written
ballots on which shall be subscribed the signatures of such Holders or of their
representatives by proxy and the serial number or numbers of the Securities 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 in duplicate of the proceedings of each meeting of Holders 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 transmitted as provided in paragraph (b) of this Section 705. The
record shall show the serial numbers of the Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
(g) Nothing contained in this Section 705 shall be deemed or construed
to authorize or permit, by reason of any call of a meeting of Holders or any
rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to any Holder under any of the provisions of this
Indenture or of the Securities of any series.
ARTICLE EIGHT -
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company, unless:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a
corporation, partnership
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or trust, shall be organized and validly existing under the laws of the
United States of America, any State thereof or the District of Columbia
and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee the due and punctual payment of
the principal of and any premium and interest on all the Securities and
the performance or observance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, and
treating any indebtedness which becomes an obligation of the Company or
a Subsidiary as a result of such transaction as having been incurred by
the Company or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing;
(3) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, properties or assets of the company
could become subject to a Mortgage which would not be permitted by this
Indenture, the Company or such successor Person, as the case may be,
shall prior to or contemporaneously with such consolidation, merger,
conveyance transfer or lease, take such steps as shall be necessary
effectively to secure the Securities equally and ratably with (or prior
to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities. In the case of a lease, the
predecessor Person shall not be released from its obligations to pay the
principal of, premium, if any, and interest on the Securities. All Securities
issued by the successor Person shall in all respects have the same legal
priority as the Securities theretofore or thereafter authenticated, issued and
delivered in accordance with the terms of this Indenture.
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ARTICLE NINE -
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add 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 expressly being
included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal and with or without interest coupons, or to
permit or facilitate the issuance of Securities in uncertificated form;
or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (i) shall neither (A)
apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such
provision nor (B) modify the rights of the Holder of any such Security
with respect to such provision or (ii) shall become effective only when
there is no such Security Outstanding; or
(6) to secure the Securities pursuant to Sections 801 or
1008 or otherwise; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or
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facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 611(b); or
(9) to add to or change any provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance
of Securities convertible into other securities; or
(10) to effectuate the provisions of Section 1405(b); or
(11) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge and covenant defeasance with respect to any
series of Securities pursuant to Sections 1502 or 1503; provided,
however, that any such action shall not adversely affect the interests
of the Holders of Securities of such series or any other series of
Securities in any material respect; or
(12) to add or change or eliminate any provisions of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act; or
(13) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided that such
action pursuant to this Clause (13) shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect.
(14) to change any place or places where (1) the principal of
and premium, if any, and interest, if any, on all or any series of
Securities shall be payable, (2) all or any series of Securities may be
surrendered for registration or transfer, (3) all or any series of
Securities may be surrendered for exchange, and 4) notices and demands
to or upon the Company in respect of all or any series of Securities
and this Indenture may be served.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or
any installment of principal of, premium, if any, or interest on, any
Security, or reduce the principal
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amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, change the method of determination of
interest thereon, 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 adversely affect any right of repayment at the option of the
Holder of any Security, or change any Place of Payment where, or the
coin or currency in which, any Security or any premium or the interest
thereon is payable or impair the right of any Holders of Securities of
a Series entitled to the conversion rights set forth in Article
Fourteen to receive securities upon the exercise of such conversion
rights, or impair the right to institute suit for the enforcement of
any such payment or delivery of Common Stock for Securities converted
pursuant to Article Fourteen 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 Repayment Date, as the case
may be, or in the case of such conversion, on or after the date of
conversion), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 1010, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this Section
and Section 1010, or the deletion of this proviso, in accordance with
the requirements of Sections 611(b) and 901(8).
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.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture
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is authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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.
Section 907. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the appropriate Trustee
of any supplemental indenture, the Company shall transmit, as provided herein,
to all Holders of any series of the Debt Securities affected thereby, a notice
setting forth in general terms the substance of such supplemental indenture.
ARTICLE TEN -
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered
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for registration of transfer, conversion or exchange and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company terminates the appointment of a Paying Agent or Security
Registrar or conversion agent or otherwise shall fail to maintain any such
required office or agency, the Company shall use its reasonable best efforts to
appoint a successor Paying Agent or Security Registrar or conversion agent
reasonably acceptable to the Trustee. If the Company fails to maintain a Paying
Agent or Security Registrar or conversion agent, the Trustee will act as such,
and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
Place of Payment for such purposes. The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum 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 in writing
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee in writing of
its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided;
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(2) give the Trustee written notice of any default by the
Company (or any other obligor upon the Securities of that series) in
the making of any payment of principal (and premium, if any) or
interest on the Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper in
the Borough of Manhattan, The City of New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Subsidiary and the rights (charter and statutory) and
franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right or franchise if in the
judgment of the Company it shall be necessary, advisable or in the interest of
the Company to discontinue the same.
Section 1005. Statement by Officers as to Default.
Pursuant to Section 314(a) of the Trust Indenture Act, the Company will
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company ending after the date hereof, a certificate signed by the principal
executive, financial or accounting officer of the Company, stating whether or
not to the best knowledge of the signer thereof the Company is in
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default in the performance and observance of any of the terms, provisions,
covenants and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided, hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary.
Section 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
Section 1008. Restrictions on Debt.
The Company will not itself, and will not permit any Subsidiary to,
incur, issue, assume or guarantee any loans, whether or not evidenced by
negotiable instruments or securities, or any notes, bonds, debentures or other
similar evidences of indebtedness for money borrowed (loans, notes, bonds,
debentures or other similar evidences of indebtedness for money borrowed being
hereinafter in this Article called "Debt"), secured by a Mortgage on any
Principal Property of the Company or any Subsidiary, or any shares of Capital
Stock or Debt of any Subsidiary, without effectively providing that the
Securities of each series then Outstanding (together with, if the Company shall
so determine, any other Debt of the Company or such Subsidiary then existing or
thereafter created which is not subordinate to the Securities of each series
then Outstanding) shall be secured equally and ratably with (or, at the option
of the Company, prior to) such secured Debt, so long as such secured Debt shall
be so secured, and the Company will not permit any Subsidiary to incur, issue,
assume or guarantee any unsecured Debt or to issue any Preferred Stock in each
instance unless the aggregate amount of (A) all such Debt, (B) the aggregate
preferential amount to which such Preferred Stock would be entitled on any
involuntary distribution of assets and (C) Attributable Debt of the Company and
its Subsidiaries in respect of sale and leaseback transactions (as defined in
Section 1009) would not exceed 10%
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of Consolidated Net Tangible Assets; provided, however, that this Section 1008
shall not apply to, and there shall be excluded from Debt in any computation
under this Section 1008:
(1) Debt secured by Mortgages on any property acquired,
constructed or improved by the Company or any Subsidiary after the
first date on which a Security is authenticated by the Trustee under
this Indenture which Mortgages are created or assumed contemporaneously
with, or within 30 months after, such acquisition, or completion of
such construction or improvement, or within six months thereafter
pursuant to a firm commitment for financing arranged with a lender or
investor within such 30- month period, to secure or provide for the
payment of all or any part of the purchase price of such property or
the cost of such construction or improvement incurred after the first
date on which a Security is authenticated by the Trustee under this
Indenture, or, in addition to Mortgages contemplated by paragraphs 2
and 3 below, Mortgages on any property existing at the time of
acquisition thereof, provided that any such Mortgage shall not apply to
any property theretofore owned by the Company or any Subsidiary other
than, in the case of any such construction or improvement, any
theretofore unimproved real property on which the property so
constructed, or the improvement, is located;
(2) Debt of any corporation existing at the time such
corporation is merged with or into the Company or a Subsidiary;
(3) Debt of any corporation existing at the time such
corporation becomes a Subsidiary;
(4) Debt of a Subsidiary to the Company or to another
Subsidiary;
(5) Debt secured by Mortgages securing obligations issued by a
state, territory or possession of the United States, or any political
subdivision of any of the foregoing, or the District of Columbia, to
finance the acquisition of or construction on property, and on which
the interest is not, in the opinion of tax counsel of recognized
standing or in accordance with a ruling issued by the Internal Revenue
Service, includable in gross income of the holder by reason of Section
103(A)(1) of the Internal Revenue Code (or any successor to such
provision) as in effect at the time of the issuance of such
obligations; and
(6) any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any
Debt referred to in the foregoing clauses (1) to (5), inclusive;
provided, that the principal amount of the Debt being extended, renewed
or replaced shall not be increased and such extension, renewal or
replacement, in the case of Debt secured by a Mortgage, shall be
limited to all or a part of the same property, shares of Capital Stock
or Debt that secured the Mortgage extended, renewed or replaced (plus
improvements on such property); and provided, further, that this
Section 1008 shall not apply to any issuance of Preferred Stock by a
Subsidiary to the Company or another Subsidiary, provided that such
Preferred Stock shall not thereafter be transferable to any Person
other than the Company or a Subsidiary.
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The Trustee shall have no duty or liability in monitoring or enforcing the
provisions of this Section, except as otherwise expressly provided in this
Indenture.
Section 1009. Restrictions on Sales and Leasebacks.
The Company will not itself, and will not permit any Subsidiary to,
enter into any transaction after the first date on which a Security is
authenticated by the Trustee under this Indenture with any bank, insurance
company, lender or other investor, or to which any such bank, insurance company,
lender or investor is a party, providing for the leasing by the Company or a
Subsidiary of any Principal Property which has been or is to be sold or
transferred by the Company or such Subsidiary to such bank, insurance company,
lender or investor, or to any Person to whom funds have been or are to be
advanced by such bank, insurance company, lender or investor on the security of
such Principal Property (herein referred to as a "sale and leaseback
transaction") unless, after giving effect thereto, the aggregate amount of all
Attributable Debt with respect to such transactions plus all Debt to which
Section 1008 is applicable would not exceed 10% of Consolidated Net Tangible
Assets. This covenant shall not apply to, and there shall be excluded from
Attributable Debt in any computation under this Section 1009, Attributable Debt
with respect to any sale and leaseback transaction if:
(1) the lease in such sale and leaseback transaction is
for a period, including renewal rights, of not in excess of three
years, or
(2) the Company or a Subsidiary, within 180 days after the
sale or transfer shall have been made by the Company or by a
Subsidiary, applies an amount not less than the greater of the net
proceeds of the sale of the Principal Property leased pursuant to such
arrangement or the fair market value of the Principal Property so
leased at the time of entering into such arrangement (as determined in
any manner approved by the Board of Directors) to the retirement of
Funded Debt of the Company ranking on a parity with or senior to the
Securities or the retirement of Funded Debt of a Subsidiary; provided,
however, that the amount to be applied to the retirement of such debt
of the Company or a Subsidiary shall be reduced by (x) the principal
amount of any Securities (or other notes or debentures constituting
Funded Debt) delivered within such 180-day period to the Trustee or
other applicable trustee for retirement and cancellation and (y) the
principal amount of such Funded Debt, other than items referred to in
the preceding clause (x), voluntarily retired by the Company or a
Subsidiary within 180 days after such sale; and provided, further,
that, notwithstanding the foregoing, no such retirement may be effected
by payment at maturity or pursuant to any mandatory sinking fund
payment or any mandatory prepayment provision, or
(3) such sale and leaseback transaction is entered into prior
to, at the time of, or within 30 months after the later of the
acquisition of the Principal Property or the completion of construction
thereon, or
(4) the lease in such sale and leaseback transaction secures
or relates to obligations issued by a state, territory or possession of
the United States, or any political subdivision of any of the
foregoing, or the District of Columbia, to finance the
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acquisition of or construction on property, and on which the interest
is not, in the opinion tax counsel of recognized standing or in
accordance with a ruling issued by the Internal Revenue Service,
includable in gross income of the holder by reason of Section 103(a)(1)
of the Internal Revenue Code (or any successor to such provision) as in
effect at the time of the issuance of such obligations, or
(5) such sale and leaseback transaction is entered into
between the Company and a Subsidiary or between Subsidiaries. The
Trustee shall have no duty or liability in monitoring or enforcing the
provisions of this Section, except as otherwise expressly provided in
this Indenture.
Section 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 801(3) and in Section 1004 and
Sections 1006 to 1009, inclusive, with respect to the Securities of any series
if before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waive 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 in 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 a Board Resolution. In case of any redemption at the election of the Company
of less than all 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, of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
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If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, in a manner
which the Trustee deems fair and appropriate, which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If the
Company shall so specify and identify the appropriate Securities, Securities
owned of record and beneficially by the Company or any Subsidiary shall not be
included in the Securities selected for redemption.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall, unless otherwise specified by the terms of
the Securities to be redeemed, be given not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be redeemed, in
accordance with Section 106.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Debt Securities of such series are being redeemed by
the Company pursuant to provisions contained in this Indenture or the
terms of the Securities of such series or a supplemental indenture
establishing such series, if such be the case, together with a brief
statement of facts permitting such redemption,
(4) if less than all the Outstanding Securities of any series
are to be redeemed (unless all the Securities of such series of a
specified tenor are to be redeemed), the identification (and, in the
case of partial redemption of any Securities, the principal amounts) of
the particular Securities to be redeemed,
(5) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
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(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, which shall be the
office or agency of the Company in each Place of Payment, and
(7) that the redemption is for a sinking fund, if such is
the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to
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and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Global Security is so surrendered, such new Security so issued
shall be a new Global Security.
ARTICLE TWELVE -
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and the basis for such credit and will also deliver to
the Trustee any Securities to be so delivered which have not theretofore been
delivered to the Trustee. Not less than 30 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
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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 1105, 1106 and 1107.
ARTICLE THIRTEEN -
REPAYMENT OF SECURITIES
AT OPTION OF HOLDERS
Section 1301. Applicability of Article.
Securities of any series that are repayable before their Stated
Maturity at the option of the Holders shall be repaid 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 1302. Notice of Repayment Date.
Notice of any Repayment Date with respect to Securities of any series
shall, unless otherwise specified by the terms of the Securities of such series,
be given by the Company not less than 45 nor more than 60 days prior to such
Repayment Date, to the Trustee and to each Holder of Securities of such series
in accordance with Sections 105 and 106, respectively.
The notice as to Repayment Date shall state:
(1) the Repayment Date;
(2) the Repayment Price;
(3) the place or places where such Securities are to be
surrendered for payment of the Repayment Price, which shall be the
office or agency of the Company in each Place of Payment, and the date
by which Securities must be so surrendered in order to be repaid;
(4) a description of the procedure which a Holder must
follow to exercise a repayment right; and
(5) that exercise of the option to elect repayment is
irrevocable.
No failure of the Company to give the foregoing notice shall limit any
Holder's right to exercise a repayment right.
Section 1303. Deposit of Repayment Price.
On or prior to any Repayment Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Repayment Price
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of and (except if the Repayment Date shall be an Interest Payment Date) accrued
interest on, all the Securities of such series which are to be repaid on that
date.
Section 1304. Securities Payable on Repayment Date.
The form of option to elect repayment having been delivered as
specified in the form of Security for such series as provided in Section 201,
the Securities so to be repaid shall, on the Repayment Date, become due and
payable at the Repayment Price applicable thereto, and from and after such date
(unless the Company shall default in the payment of the Repayment Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for repayment in accordance with said notice, such Security
shall be paid by the Company at the Repayment Price, together with accrued
interest to the Repayment Date; provided, however, that, unless otherwise
specified as contemplated by Section 301, installments of interest whose Stated
Maturity is on or prior to such Repayment Date will be payable to the Holders of
such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Date according to their terms and
the provisions of Section 307.
If any Security to be repaid shall not be so paid upon surrender
thereof for repayment, the principal shall, until paid, bear interest from the
Repayment Date at the rate prescribed in the Security.
Section 1305. Securities Repaid in Part.
Any Security which by its terms may be repaid in part at the option of
the Holder and which is to be repaid only in part shall be surrendered at any
office or agency of the Company designated for that purpose pursuant to Section
1002 (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 his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge, a new Security
or Securities of the same series and of like tenor, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unrepaid portion of the principal of the Security so
surrendered. If a Global Security is so surrendered, such new Security so issued
shall be a new Global Security.
ARTICLE FOURTEEN -
CONVERSION OF SECURITIES
Section 1401. General.
If so provided in the terms of the Securities of any series established
in accordance with Section 301, the principal amount of the Securities of such
series shall be convertible into shares of Common Stock in accordance with this
Article Fourteen and the terms of such series of Securities if such terms differ
from this Article Fourteen; provided, however, that if any of the terms by which
any such Security shall be convertible into Common Stock are set forth in a
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supplemental indenture entered into with respect thereto pursuant to Section
901(9) hereof, the terms of such supplemental indenture shall govern.
Section 1402. Right to Convert.
Subject to and upon compliance with the provisions of this Article, the
Holder of any Security that is convertible into Common Stock shall have the
right, at such Holder's option, at any time on or after the date of original
issue of such Security or such other date specified in the applicable Board
Resolution delivered pursuant to Section 301 and prior to the close of business
on the date set forth in such Board Resolution (or if such Security is called
for redemption, then in respect of such Security to and including but not after
the close of business on the date of redemption unless the Company shall default
in the payment due on such date) to convert the principal amount of any such
Security of any authorized denomination, or, in the case of any Security to be
converted of a denomination greater than the minimum denomination for Securities
of the applicable series, any portion of such principal which is an authorized
denomination or an integral multiple thereof, into that number of fully paid and
nonassessable shares of Common Stock obtained by dividing the principal amount
of such Security or portion thereof surrendered for conversion by the Conversion
Price therefor by surrender of the Security so to be converted in whole or in
part in the manner provided in Section 1403. Such conversion shall be effected
by the Company in accordance with the provisions of this Article and the terms
of the Securities, if such terms differ from this Article.
Section 1403. Manner of Exercise of Conversion Privilege; Delivery of Common
Stock; No Adjustment for Interest or Dividends.
In order to effect a conversion, the holder of any Security to be
converted, in whole or in part, shall surrender such Security at the office or
agency maintained by the Company for such purpose, as provided in Section 1002
and shall give written notice of conversion to the Company at such office or
agency that the Holder elects to convert such Security or the portion thereof
specified in said notice. The notice shall state the name or names (with
address), and taxpayer identification number, in which the certificate or
certificates for shares of Common Stock which shall be deliverable on such
conversion shall be registered, and shall be accompanied by payments in respect
of transfer taxes, if required pursuant to Section 1406. Each Security
surrendered for conversion shall, unless the shares of Common Stock deliverable
on conversion are to be issued in the same name as the registration of such
Security, be duly endorsed by or be accompanied by instruments of transfer, in
form satisfactory to the Company, duly executed by the Holder or such Holder's
duly authorized attorney, and by any payment required pursuant to this Section
1403. As promptly as practicable after the surrender of such Security and
notice, as aforesaid, the Company shall deliver or cause to be delivered at such
office or agency to such Holder, or on such Holder's written order, a
certificate or certificates for the number of full shares of Common Stock
deliverable upon the conversion of such Security or portion thereof in
accordance with the provisions of this Article and a check or cash in respect of
any fractional interest in respect of a share of Common Stock arising upon such
conversion as provided in Section 1404. In case any Security of a denomination
greater than the minimum denomination for Securities of the applicable series
shall be surrendered for partial conversion, the Company shall execute and
register and the Trustee shall authenticate and deliver
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to or upon the written order of the Company and the Holder of the Security so
surrendered, without charge to such Holder, a new Security or Securities of the
same series in authorized denominations in an aggregate principal amount equal
to the unconverted portion of the surrendered Security. Each conversion shall be
deemed to have been effected as of the date on which such Security shall have
been surrendered (accompanied by the funds, if any, required by the last
paragraph of this Section) and such notice received by the Company, as
aforesaid, and the person or persons in whose name or names any certificate or
certificates for shares of Common Stock shall be registrable upon such
conversion shall become on said date the Holder of record of the shares
represented thereby, provided, however, that any such surrender on any date when
the stock transfer books of the Company shall be closed shall constitute the
person in whose name the certificates are to be registered as the record holder
thereof for all purposes on the next succeeding day on which such stock transfer
books are open, but such conversion shall be at the Conversion Price in effect
on the date upon which such Security shall have been so surrendered.
Any Security or portion thereof surrendered for conversion during the
period from the close of business on the Regular Record Date for any Interest
Payment Date to the opening of business on such Interest Payment Date shall
(unless such Security or portion thereof being converted shall have been called
for redemption or submitted for repayment on a date during such period) be
accompanied by payment, in legal tender or other funds acceptable to the
Company, of an amount equal to the interest otherwise payable on such Interest
Payment Date on the principal amount being converted; provided, however, that no
such payment need be made if there shall exist at the time of conversion a
default in the payment of interest on the applicable series of Securities. An
amount equal to such payment shall be paid by the Company on such Interest
Payment Date to the Holder of such Security on such Regular Record Date;
provided, however, that if the Company shall default in the payment of interest
on such Interest Payment Date, such amount shall be paid to the person who made
such required payment. Except as provided above in this Section, no adjustment
shall be made for interest accrued on any Security converted or for dividends on
any shares issued upon the conversion of such Security as provided in this
Article.
Section 1404. Cash Payments in Lieu of Fractional Shares.
No fractional shares of Common Stock or scrip representing fractional
shares of Common Stock shall be delivered upon conversion of Securities. If more
than one Security shall be surrendered for conversion at one time by the same
Holder, the number of full shares of Common Stock which shall be deliverable
upon conversion shall be computed on the basis of the aggregate principal amount
of the Securities (or specified portions thereof to the extent permitted hereby)
so surrendered. Instead of any fraction of a share of Common Stock which would
otherwise be deliverable upon the conversion of any Security, the Company shall
pay to the Holder of such Security an amount in cash (computed to the nearest
cent, with one-half cent being rounded upward) equal to the same fraction of the
closing price (determined in the manner provided in Section 1405(a)(v)) of the
Common Stock on the Trading Day (as defined in Section 1405(a)(v)) next
preceding the date of conversion.
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Section 1405. Conversion Price Adjustments; Effect of Reclassification,
Mergers, Consolidations and Sales of Assets.
(a) The Conversion Price shall be adjusted from time to time as
follows:
(i) In case the Company shall (x) pay a dividend or make a
distribution on the Common Stock in shares of Common Stock, (y)
subdivide the outstanding Common Stock into a greater number of shares
or (z) combine the outstanding Common Stock into a smaller number of
shares, the Conversion Price shall be adjusted so that the Holder of
any Security thereafter surrendered for conversion shall be entitled to
receive the number of shares of Common Stock of the Company which such
holder would have owned or have been entitled to receive after the
happening of any of the events described above had such Security been
converted immediately prior to the record date in the case of a
dividend or the effective date in the case of subdivision or
combination. An adjustment made pursuant to this subparagraph (i) shall
become effective immediately after the record date in the case of a
dividend, except as provided in subparagraph (vii) below, and shall
become effective immediately after the effective date in the case of a
subdivision or combination.
(ii) In case the Company shall issue rights or warrants to all
holders of shares of Common Stock entitling them (for a period expiring
within 45 days after the record date mentioned below) to subscribe for
or purchase shares of Common Stock at a price per share less than the
current market price per share of Common Stock (as defined for purposes
of this subparagraph (ii) in subparagraph (v) below), the Conversion
Price in effect after the record date for the determination of
stockholders entitled to receive such rights or warrants shall be
determined by multiplying the Conversion Price in effect immediately
prior to such record date by a fraction, the numerator of which shall
be the number of shares of Common Stock outstanding on such record date
plus the number of shares of Common Stock which the aggregate offering
price of the total number of shares of Common Stock so offered would
purchase at such current market price, and the denominator of which
shall be the number of shares of Common Stock outstanding on the record
date for issuance of such rights or warrants plus the number of
additional shares of Common Stock receivable upon exercise of such
rights or warrants. Such adjustment shall be made successively whenever
any such rights or warrants are issued, and shall become effective
immediately, except as provided in subparagraph (vii) below, after such
record date.
(iii) In case the Company shall distribute to all holders of
Common Stock any shares of capital stock of the Company (other than
Common Stock) or evidences of its indebtedness or assets (excluding
cash dividends or distributions paid from retained earnings of the
Company or dividends payable in Common Stock) or rights or warrants to
subscribe for or purchase any of its securities (excluding those rights
or warrants referred to in subparagraph (ii) above) (any of the
foregoing being hereinafter in this subparagraph (iii) called the
"Assets"), then, in each such case, the Conversion Price shall be
adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the
record date for determination of
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stockholders entitled to receive such distribution by a fraction the
numerator of which shall be the current market price per share (as
defined for purposes of this subparagraph (iii) in subparagraph (v)
below) of the Common Stock at such record date for determination of
stockholders entitled to receive such distribution less the then fair
market value (as determined by the Board of Directors, whose
determination shall be conclusive) of the portion of the Assets so
distributed applicable to one share of Common Stock, and the
denominator of which shall be the current market price per share (as
defined in subparagraph (v) below) of the Common Stock at such record
date. Such adjustment shall become effective immediately, except as
provided in subparagraph (vii) below, after the record date for the
determination of stockholders entitled to receive such distribution.
(iv) If, pursuant to subparagraph (ii) or (iii) above, the
number of shares of Common Stock into which a Security is convertible
shall have been adjusted because the Company has declared a dividend,
or made a distribution, on the outstanding shares of Common Stock in
the form of any right or warrant to purchase securities of the Company,
or the Company has issued any such right or warrant, then, upon the
expiration of any such unexercised right or unexercised warrant, the
Conversion Price shall forthwith be adjusted to equal the Conversion
Price that would have applied had such right or warrant never been
declared, distributed or issued.
(v) For the purpose of any computation under subparagraphs
(ii) or (iii) above, the current market price per share of Common Stock
on any date shall be deemed to be the average of the daily closing
prices of the Common Stock for the shorter of (i) 30 consecutive
Trading Days ending on the last full Trading Day on the exchange or
market specified in the second following sentence prior to the Time of
Determination or (ii) the period commencing on the date next succeeding
the first public announcement of the issuance of such rights or
warrants or such distribution through such last full Trading Day prior
to the Time of Determination. The term "Time of Determination" as used
herein shall be the time and date of the earlier of (x) the
determination of stockholders entitled to receive such rights,
warrants, or distributions or (y) the commencement of "ex-dividend"
trading in the Common Stock on the exchange or market specified in the
following sentence. The closing price for each day shall be the
reported last sales price, regular way, or, in case no sale takes place
on such day, the average of the reported closing bid and asked prices,
regular way, in either case as reported on the New York Stock Exchange
Composite Tape or, if the Common Stock is not listed or admitted to
trading on the New York Stock Exchange at such time, on the principal
national securities exchange on which the Common Stock is listed or
admitted to trading or, if not listed or admitted to trading on any
national securities exchange, on the Nasdaq National Market ("NNM") or,
if the Common Stock is not quoted on the average of the closing bid and
asked prices on such day in the over-the-counter market as reported by
NNM or, if bid and asked prices for the Common Stock on each such day
shall not have been reported through NNM, the average of the bid and
asked prices for such date as furnished by any New York Stock Exchange
member firm regularly making a market in the Common Stock selected for
such purpose by the Company or, if no such quotations are available,
the fair market value of the Common Stock as determined by a New York
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Stock Exchange member firm regularly making a market in the Common
Stock selected for such purpose by the Company. As used herein, the
term "Trading Day" with respect to Common Stock means (x) if the Common
Stock is listed or admitted for trading on the New York Stock Exchange
or another national securities exchange, a day on which the New York
Stock Exchange or such other national securities exchange, as the case
may be, is open for business or (y) if the Common Stock is quoted on
NNM, a day on which trades may be made on NNM or (z) otherwise, any day
other than a Saturday or Sunday or a day on which banking institutions
in the State of New York are authorized or obligated by law or
executive order to close.
(vi) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at
least 1% in such price; provided, however, that any adjustments which
by reason of this subparagraph (vi) are not required to be made shall
be carried forward and taken into account in any subsequent adjustment.
All calculations under this Section 1405(a) shall be made to the
nearest cent or to the nearest .01 of a share, as the case may be, with
one-half cent and .005 of a share, respectively, being rounded upward.
Anything in this Section 1405(a) to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Conversion
Price, in addition to those required by this Section 1405(a), as it in
its discretion shall determine to be advisable in order that any stock
dividend, subdivision of shares, distribution of rights or warrants to
purchase stock or securities, or distribution of other assets (other
than cash dividends) hereafter made by the Company to its stockholders
shall not be taxable.
(vii) In any case in which this Section 1405(a) provides that
an adjustment shall become effective immediately after a record date
for an event, the Company may defer until the occurrence of such event
(x) issuing to the holder of any Security converted after such record
date and before the occurrence of such event the additional shares of
Common Stock issuable upon such conversion by reason of the adjustment
required by such event over and above the Common Stock issuable upon
such conversion before giving effect to such adjustment and (y) paying
to such holder any amount of cash in lieu of any fractional share of
Common Stock pursuant to Section 1404.
(viii) Whenever the Conversion Price is adjusted as herein
provided, the Company shall file with the Trustee an Officers'
Certificate, setting forth the Conversion Price after such adjustment
and setting forth a brief statement of the facts requiring such
adjustment, which certificate shall be conclusive evidence of the
correctness of such adjustment; provided, however, that the failure of
the Company to file such Officers' Certificate shall not affect the
legality or validity of any corporate action by the Company.
(ix) Whenever the Conversion Price for any series of
Securities is adjusted as provided in this Section 1405(a), the Company
shall cause to be mailed to each holder of Securities of such series at
its then registered address by first-class mail, postage prepaid, a
notice of such adjustment of the Conversion Price setting forth such
adjusted Conversion Price and the effective date of such adjusted
Conversion Price; provided,
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however, that the failure of the Company to give such notice shall not
affect the legality or validity of any corporate action by the Company.
(b) (i) Notwithstanding any other provision herein to the contrary, if
any of the following events occur, namely (x) any reclassification or
change of outstanding shares of Common Stock (other than a change in
par value, or from par value to no par value, or from no par value to
par value, or as a result of a subdivision or combination of the Common
Stock), (y) any consolidation, merger or combination of the Company
with or into another corporation as a result of which holders of Common
Stock shall be entitled to receive stock, securities or other property
or assets (including cash) with respect to or in exchange for such
Common Stock, or (z) any sale or conveyance of all or substantially all
of the assets of the Company to any other entity as a result of which
holders of Common Stock shall be entitled to receive stock, securities
or other property or assets (including cash) with respect to or in
exchange for such Common Stock, then appropriate provision shall be
made by supplemental indenture so that (A) the holder of any
outstanding Security that is convertible into Common Stock shall have
the right to convert such Security into the kind and amount of the
shares of stock and securities or other property or assets (including
cash) that would have been receivable upon such reclassification,
change, consolidation, merger, combination, sale, or conveyance by a
holder of the number of shares of Common Stock issuable upon conversion
of such Security immediately prior to such reclassification, change,
consolidation, merger, combination, sale or conveyance and (B) the
number of shares of any such other stock or securities into which such
Security shall thereafter be convertible shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as
practicable to the terms of adjustment provided for in this Section,
and Sections 1402, 1403, 1404, 1406, 1407, 1408 and 1409 shall apply on
like terms to any such other stock or securities.
(ii) In case of any reclassification or change of the Common
Stock (other than a subdivision or combination of its outstanding
Common Stock, or a change in par value, or from par value to no par
value, or from no par value to par value), or of any consolidation,
merger or combination of the Company with or into another corporation
or of the sale or conveyance of all or substantially all of the assets
of the Company, the Company shall cause to be filed with the Trustee
and to be mailed to each holder of Securities that are convertible into
shares of Common Stock at such holder's registered address, the date on
which such reclassification, change, consolidation, merger,
combination, sale or conveyance is expected to become effective, and
the date as of which it is expected that holders of Common Stock shall
be entitled to exchange their Common Stock for stock, securities or
other property deliverable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance.
Section 1406. Taxes on Shares Issued.
The delivery of stock certificates upon conversions of Securities shall
be made without charge to the holder converting a Security for any tax in
respect of the issue thereof. The Company shall not, however, be required to pay
any tax which may be payable in respect of any
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transfer involved in the delivery of stock registered in any name other than of
the holder of any Security converted, and the Company shall not be required to
deliver any such stock certificate unless and until the person or persons
requesting the delivery thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that such
tax has been paid.
Section 1407. Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock.
The Company covenants that all shares of Common Stock which may be
delivered upon conversion of Securities of any series which are convertible into
Common Stock will upon delivery be fully paid and nonassessable by the Company
and free from all taxes, liens and charges with respect to the issue thereof.
The Company covenants that if any shares of Common Stock to be provided
for the purpose of conversion of Securities hereunder require registration with
or approval of any governmental authority under any Federal or state law before
such shares may be validly delivered upon conversion, the Company will in good
faith and as expeditiously as possible endeavor to secure such registration or
approval, as the case may be.
The Company further covenants that it will, if permitted by the rules
of the New York Stock Exchange or such other national stock exchange on which
the Common Stock is listed or admitted to trading or if permitted by the rules
of NASDAQ if the Common Stock is approved by it for listing or quotation, list
and keep listed for so long as the Common Stock shall be so listed on such
exchange, upon official notice of issuance, all Common Stock deliverable upon
conversion of Securities of any series which are convertible into Common Stock.
Section 1408. Responsibility of Trustee.
Neither the Trustee nor any conversion agent shall at any time be under
any duty or responsibility to any Holder of Securities to determine whether any
facts exist which may require any adjustment of the Conversion Price applicable
to such Securities, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same. Neither
the Trustee nor any conversion agent shall be accountable with respect to the
validity or value (or the kind or amount) of any shares of Common Stock, or of
any securities or property, which may at any time be delivered upon the
conversion of any Security; and neither the Trustee nor any conversion agent
makes any representation with respect thereto. Neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company to deliver
any shares of Common Stock or stock certificates or other securities or property
or cash upon the surrender of any Security for the purpose of conversion or for
any failure of the Company to comply with any of the covenants of the Company
contained in this Article Fourteen.
Section 1409. Covenant to Reserve Shares.
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The Company covenants that it will at all times reserve and keep
available, free from pre-emptive rights, out of its authorized but unissued
Common Stock, such number of shares of Common Stock as shall then be deliverable
upon the conversion of all Outstanding Securities of any series of Securities
which are convertible into Common Stock.
Section 1410. Other Conversions.
If so provided in a Board Resolution with respect to the Securities of
a series, the principal amount of the Securities of such series shall be
convertible into or exchangeable for a principal amount of other securities of
the Company (which other securities may be issued under this Indenture or
otherwise), and the issuance of such securities upon any such conversion or
exchange shall be made in accordance with the terms of such Board Resolution.
ARTICLE FIFTEEN -
DEFEASANCE AND COVENANT DEFEASANCE
Section 1501. Applicability of Article; Company's Option to Effect Defeasance
or Covenant Defeasance.
If pursuant to Section 301 provision is made for either or both of (a)
defeasance of the Securities of a series under Section 1502 or (b) covenant
defeasance of the Securities of a series under Section 1503, then the provisions
of such Section or Sections, as the case may be, together with the other
provisions of this Article Fifteen, shall be applicable to the Securities of
such series, and the Company may at its option by Board Resolution, at any time,
with respect to the Securities of such series, elect to have either Section 1502
(if applicable) or Section 1503 (if applicable) be applied to the Outstanding
Securities of such series upon compliance with the conditions set forth below in
this Article Fifteen.
Section 1502. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section with respect to the Outstanding Securities of a particular series, the
Company shall be deemed to have been discharged from its obligations with
respect to the Outstanding Securities of such series on and after the date the
conditions precedent set forth below 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 the Outstanding
Securities of such series and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned (and
the Trustee, at the expense of the Company and upon Company Request, 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 Outstanding Securities of such series to receive, solely
from the trust fund described in Section 1504 as more fully set forth in such
Section, payments of the principal of and any premium and interest on such
Securities when such payments are due, (B) the Company's obligations with
respect to such Securities under Section 304, 305, 306, 607, 1002 and 1003 and
such obligations as shall be ancillary thereto, (C) the rights, powers, trusts,
duties, immunities and other provisions in respect of the Trustee hereunder and
(D) this Article Fifteen. Subject
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to compliance with this Article Fifteen, the Company may exercise its option
under this Section 1502 notwithstanding the prior exercise of its option under
Section 1503 with respect to the Securities of such series.
Section 1503. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this
Section with respect to the Outstanding Securities of a particular series, the
Company shall be released from its obligations under Sections 801, 1008 and 1009
(and any other covenant applicable to such Securities that is determined
pursuant to Section 301 to be subject to covenant defeasance under this Section)
and the occurrence of an event specified in Clause (4) of Section 501 with
respect to any of Sections 801, 1008 or 1009 (and any other Event of Default
applicable to such Securities that is determined pursuant to Section 301 to be
subject to covenant defeasance under this Section) shall not be deemed to be an
Event of Default with respect to the Outstanding Securities of such series on
and after the date the conditions set forth below are satisfied (hereinafter,
"covenant defeasance"). For this purpose, such covenant defeasance means that,
with respect to the Outstanding Securities of such series, 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 Clause whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or
Clause or by reason of any reference in any such Section or Clause to any other
provision herein or in any other document, but the remainder of this Indenture
and such Securities shall be unaffected thereby.
Section 1504. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent to application of
either Section 1502 or Section 1503 to the Outstanding Securities of a
particular series:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Fifteen 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, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient, without
reinvestment, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereto 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 any premium and interest on the
Outstanding Securities of such series on the maturity of such
principal, premium or interest and (ii) any mandatory sinking fund
payments or analogous payments applicable to the Outstanding Securities
of such series on the day on which such payments are due in accordance
with the terms of this Indenture and of such Securities. Before such a
deposit, the Company may make arrangements satisfactory to the Trustee
for the redemption of Securities at a future date
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or dates in accordance with Article Eleven, which shall be given effect
in applying the foregoing. For this purpose, "U.S. Government
Obligations" means securities that are (x) direct obligations of the
United States of America for the payment of which its full faith and
credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States
of America, which, in either case, are not callable or redeemable at
the option of the issuer thereof, and shall also include a depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933, as amended) as custodian with respect to any
such U.S. Government Obligation or a specific payment of principal of
or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depositary 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 depositary receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal of or interest on the U.S. Government Obligation evidenced by
such depositary receipt.
(2) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing (A) on
the date of such deposit or (B) insofar as subsections 501(6) and (7)
are concerned, at any time during the period ending on the 91st day
after the date of such deposit or, if longer, ending on the day
following the expiration of the longest preference period applicable to
the Company in respect of such deposit (it being understood that the
condition in this condition shall not be deemed satisfied until the
expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A) cause
the Trustee for the Securities of such series to have a conflicting
interest as defined in Section 608 or for purposes of the Trust
Indenture Act with respect to any securities of the Company or (B)
result in the trust arising from such deposit to constitute, unless it
is qualified as, a regulated investment company under the Investment
Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Company is a party or
by which it is bound.
(5) In the case of an election under Section 1502, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date 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 the Outstanding Securities of such
series 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.
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<PAGE>
(6) In the case of an election under Section 1503, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred.
(7) Such defeasance or covenant defeasance shall be effected
in compliance with any additional terms, conditions or limitations
which may be imposed on the Company in connection therewith pursuant to
Section 301.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 1502 or the covenant defeasance under Section 1503 (as
the case may be) have been complied with.
Section 1505. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee - collectively, for purposes for
this Section 1505, the "Trustee") pursuant to Section 1504 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent (but not
including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal, premium and interest, but such money need not
be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 1504 or the principal and interest
received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in Section 1504 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
Section 1506. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1502 or 1503 with respect to the Securities of any
series by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such
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<PAGE>
series shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Fifteen until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 1502 or 1053;
provided, however, that if the Company makes any payment of the principal of or
any premium or interest on any such Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
the Paying Agent.
ARTICLE SIXTEEN -
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 1601. Immunity of Incorporators, Stockholders, Officers and Directors.
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 or
director, 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, and that no
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Company or
any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by this Indenture or in any of the
Securities or implied therefrom; and that any and all such personal liability of
every name and nature, 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 or director, 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 instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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<PAGE>
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.
[SEAL] LOWE'S COMPANIES, INC.
/s/ Richard D. Elledge
By: Richard D. Elledge
Its: Vice President
Attest: /s/ William C. Warden, Jr.
By: William C. Warden, Jr.
Its: Secretary
[SEAL] THE FIRST NATIONAL BANK OF CHICAGO
/s/ R.D. Manella
By: R.D. Manella
Its: Vice President
Attest: /s/ Jeffrey L. Kinney
By: Jeffrey L. Kinney
Its: Trust Officer
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<PAGE>
State of North Carolina
SS:
County of Wilkes
On the 14th day of December, 1995, before me personally came
Richard D. Elledge, to me known, who, being by me duly sworn, did depose and
say that he is Vice President of LOWE'S COMPANIES, 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.
/s/ Gloria Hinshaw
[SEAL]
Notary Public
State of Illinois
SS:
County of Cook
On the 14th day of December, 1995, before me personally came R.D.
Manella, to me known, who, being by me duly sworn, did depose and say that
he is Vice President of THE FIRST NATIONAL BANK OF CHICAGO, 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 corporation's 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.
[SEAL] /s/
Notary Public
December 14, 1995
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<PAGE>
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO LOWE'S COMPANIES, INC. OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
LOWE'S COMPANIES, INC.
6 3/8% SENIOR NOTES DUE DECEMBER 15, 2005
No.
Principal Amount: $
CUSIP No.: 548661AD9
Lowe's Companies, Inc., a corporation duly organized and existing under
the laws of the State of North Carolina (the "Company", which term includes any
successor under the Indenture hereinafter referred to), for value received,
hereby promises to pay to
CEDE & CO.
or registered assigns, the principal sum of $100,000,000 on December 15, 2005,
and to pay interest thereon from December 18, 1995 or from the most recent
Interest Payment Date on which interest has been paid or duly provided for,
semi-annually in arrears on June 15 and December 15 in each year, commencing
June 15, 1996, at the rate of 6 3/8% per annum, until the principal hereof is
paid or made available for payment, and at the same rate per annum on any
overdue principal and premium and on any overdue installment of interest until
paid.
This note (the "Note") is a "book-entry" note and is being registered
in the name of Cede & Co. as nominee of The Depository Trust Company ("DTC"), a
clearing agency. Subject to the terms of the Indenture, this note will be held
by a clearing agency or its nominee, and beneficial interests will be held by
beneficial owners through the book-entry facilities of such clearing agency or
its nominee in minimum denominations of $1,000 and increments of $1,000 in
excess thereof.
Interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the person
in whose name this Note is registered at the close of business on the Regular
Record Date for such interest, which shall be the June 1 or December 1 (whether
or not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the person in whose name this Note is
registered on such
<PAGE>
Regular Record Date and may either be paid to the person in whose name this Note
is registered at the close of business on a Special Record Date for the payment
of such Defaulted Interested to be fixed by the Trustee, notice whereof shall be
given to the person in whose name this Note is registered not less than ten days
prior to such Special Record Date, or be paid at any time in any other lawful
manner, all as more fully provided in said Indenture.
As long as this Note is registered in the name of DTC or its nominee,
the Trustee will make payments of principal of and interest on this Note by wire
transfer of immediately available funds to DTC or its nominee. Notwithstanding
the above, the final payment on this Note will be made after due notice by the
Trustee of the pendency of such payment and only upon presentation and surrender
of this Note at its principal corporate trust office or such other offices or
agencies appointed by the Trustee for that purpose and such other locations
provided in the Indenture.
Payments of the principal of (and premium, if any) and interest on this
Note will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payments of public and private debts; provided, however, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
This Note is one of a duly authorized issue of Notes of the Company,
designated 6 3/8% Senior Notes due December 15, 2005, issued in aggregate
principal amount of $100,000,000, as specifically set forth in an amended and
restated indenture dated as of December 1, 1995 (the "Indenture"), between the
Company and The First National Bank of Chicago, as trustee (the "Trustee," which
term includes any successor Trustee under the Indenture). Reference is hereby
made to the Indenture and all indentures supplemental thereto for a statement of
the respective rights thereunder of the Company, the Trustee and the Holders of
the Notes, and the terms upon which the Notes are, and are to be, authenticated
and delivered. All terms used in this Note that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Notes do not have the benefit of any sinking fund obligations and
will not be redeemable at the option of the Company or repayable at the option
of the Holder prior to maturity.
If an Event of Default shall occur and be continuing, the principal of
all the Notes may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes under the Indenture at any
time by the Company, the Trustee with the consent of the Holders of a majority
in aggregate principal amount of the Notes at the time outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Notes at the time outstanding,
on behalf of the Holders of all Notes, to waive compliance by the Company with
certain provisions of the Indenture and certain past Defaults under the
Indenture and their consequences. Any such
<PAGE>
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Note at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations on
transfer of this Note by DTC or its nominee, the transfer of this Note is
registrable in the Security Register, upon surrender of this Note for
registration of transfer at the office or agency of the Company in the Borough
of Manhattan, the City of New York, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company, or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Company, the
Trustee or any such agent shall be affected by notice to the contrary.
Interest on this Note shall be computed on the basis of a 360-day year
of twelve 30-day months.
The Company will furnish to any Holder of record of Notes upon written
request and without charge a copy of the Indenture.
<PAGE>
All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
The Indenture and this Note each shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflicts of law.
Unless the certificate of authentication hereon has been executed by
the Trustee referred by manual signature, this Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, LOWE'S COMPANIES, INC. has caused this instrument
to be duly executed.
Dated: December 18, 1995
LOWE'S COMPANIES, INC.
By ___________________
Title:
Attest:
- --------------------------
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
The First National Bank of Chicago,
as Trustee
By __________________________
Authorized Signatory
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - tenants in common
TEN ENT - tenants by the entireties
JT TEN - joint tenants with right of survivorship and not as tenants in common
CUST - Custodian U/G/M/A or UNIF GIFT MIN ACT - Uniform Gifts to Minors Act
Additional abbreviations may also be used though not in the above list.
<PAGE>
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Please print or typewrite name and address of assignee)
- ------------------------------------------------------------------------------
(Please insert Social Security or other identifying Number of Assignee)
the within Note of Lowe's Companies, Inc. and does hereby irrevocably constitute
and appoint
_________________________________________________________________, Attorney, to
transfer the said Note on the books of the within named Lowe's Companies, Inc.,
with full power of substitution in the premises.
Dated: __________________________
--------------------------------------
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Note in every particular
without alteration or enlargement or
any change whatever.
- ---------------------------------
SIGNATURE GUARANTEED:
The signature must be guaranteed by
a member of the Securities Transfer
Agents Medallion Program.
Notarized or witnessed signatures
are not acceptable.
<PAGE>
PAYMENT INSTRUCTIONS
The assignee should include the following for purposes of payment:
Payment shall be made, by wire transfer or otherwise, in immediately
available funds, to _______________________, for the account of
___________________, account number _____________, or, if mailed by check, to
_________________________. Applicable reports and statements should be mailed to
_____________________. This information is provided by ___________________, the
assignee named above, or ______________________________, as its agent.
