<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 10, 1994
REGISTRATION NO. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
CYPRUS AMAX MINERALS COMPANY AND CYPRUS AMAX FINANCE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
----------------
CYPRUS AMAX MINERALS COMPANY--DELAWARE CYPRUS AMAX MINERALS COMPANY--36-
CYPRUS AMAX FINANCE CORPORATION-- 2684040
DELAWARE CYPRUS AMAX FINANCE CORPORATION--
(STATE OR OTHER JURISDICTION OF APPLIED FOR
INCORPORATION OR ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
----------------
9100 EAST MINERAL CIRCLE
ENGLEWOOD, COLORADO 80112
(303) 643-5000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
PHILIP C. WOLF, ESQ.
SENIOR VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
9100 EAST MINERAL CIRCLE
ENGLEWOOD, COLORADO 80112
(303) 643-5000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
----------------
COPIES TO:
PAUL HILTON, ESQ.
RONALD R. LEVINE, II, ESQ.
DAVIS, GRAHAM & STUBBS
370 SEVENTEENTH STREET
DENVER, COLORADO 80202
(303) 892-9400
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
----------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT(2) PRICE(3) FEE(3)
- ------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities(4).........
- ------------------------------------------------------------------------------------
Common Stock, (without par
value)(5).................
- ------------------------------------------------------------------------------------
Preferred Stock, par value
$1.00 per share(6)........
- ------------------------------------------------------------------------------------
Warrants(7)................
- ------------------------------------------------------------------------------------
Guarantees(8)..............
- ------------------------------------------------------------------------------------
Total................... $500,000,000 100% $500,000,000 $172,414
</TABLE>
- --------------------------------------------------------------------------------
(Footnotes on next page)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
(Continued from previous page)
(1) In U.S. dollars or the equivalent thereof in one or more foreign currencies
or currency units or composite currencies, including the European Currency
Unit.
(2) The proposed maximum initial offering price per unit will be determined,
from time to time, by the Registrant.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o). In no event will the aggregate initial offering
price of all securities issued from time to time pursuant to this
Registration Statement exceed $500,000,000.
(4) Subject to Footnote (3), there are being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold from time
to time by each of the Registrants. If any such Debt Securities are issued
at an original issue discount, then the offering price shall be in such
greater principal amount as shall result in an aggregate initial offering
price of up to $500,000,000.
(5) Subject to Footnote (3), there are being registered hereunder an
indeterminate number of shares of Common Stock as may be sold from time to
time by Cyprus Amax Minerals Company. There are also being registered
hereunder an indeterminate number of shares of Common Stock as may be
issuable upon conversion of the Debt Securities, Preferred Stock or
Warrants.
(6) Subject to Footnote (3), there are being registered hereunder an
indeterminate number of shares of Preferred Stock as may be sold from time
to time by Cyprus Amax Minerals Company. There are also being registered
hereunder an indeterminate number of shares of Preferred Stock, Warrants or
Debt Securities as may be issuable upon the conversion of the Preferred
Stock registered hereby.
(7) Subject to Footnote (3), there are being registered hereunder an
indeterminate number of Warrants as may be sold from time to time by Cyprus
Amax Minerals Company. There are also being registered hereunder an
indeterminate number of shares of Common Stock, Preferred Stock and Debt
Securities as may be issuable upon the exercise of the Warrants registered
hereby.
(8) Each of the Debt Securities issued by Cyprus Amax Finance Corporation will
be accompanied by a Guaranty to be issued by Cyprus Amax Minerals Company.
None of the proceeds will be received by Cyprus Amax Minerals Company for
the Guarantees.
----------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
<PAGE>
CYPRUS AMAX MINERALS COMPANY CYPRUS AMAX FINANCE CORPORATION
CROSS REFERENCE SHEET
PURSUANT TO ITEM 501(B) OF REGULATION S-K
<TABLE>
<CAPTION>
ITEM NUMBER AND CAPTION PROSPECTUS HEADING
----------------------- ------------------
<S> <C>
1. Forepart of the Registration Statement and
Outside Front Forepart of Registration
Cover Page of Prospectus.................. Statement; Outside Front Cover
Page
2. Inside Front and Outside Back Cover Pages Inside Front and Outside Back
of Prospectus.............................. Cover Pages
3. Summary Information, Risk Factors and Ratio The Company; Ratio of Earnings
of Earnings to to Fixed Charges and Preferred
Fixed Charges............................. Stock Dividends of the Company
4. Use of Proceeds............................ Use of Proceeds
5. Determination of Offering Price............ Plan of Distribution
6. Dilution................................... Not Applicable
7. Selling Security Holders................... Not Applicable
8. Plan of Distribution....................... Plan of Distribution
9. Description of Securities to be Registered. Description of Debt Securities
and Guarantees; Description of
Preferred Stock; Description
of Depositary Shares;
Description of Common Stock;
Description of Warrants
10. Interests of Named Experts and Counsel..... Experts; Validity of Securities
11. Material Changes........................... Incorporation of Certain
Documents by Reference
12. Incorporation of Certain Information by Incorporation of Certain
Reference.................................. Documents by Reference
13. Disclosure of Commission Position on
Indemnification for
Securities Act Liabilities................ Not Applicable
</TABLE>
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED JUNE 10, 1994
PROSPECTUS
$500,000,000
[LOGO OF CYPRUS AMAX MINERALS COMPANY APPEARS HERE]
DEBT SECURITIES
GUARANTEES
PREFERRED STOCK
COMMON STOCK
WARRANTS
----------
CYPRUS AMAX FINANCE CORPORATION
GUARANTEED DEBT SECURITIES
----------
Cyprus Amax Minerals Company (the "Company") may offer from time to time (i)
Debt Securities ("Debt Securities"), which may be either senior debt securities
("Senior Securities"), senior subordinated debt securities ("Senior
Subordinated Securities") or subordinated debt securities ("Subordinated
Securities"), consisting of debentures, notes, bonds and/or other unsecured
evidences of indebtedness in one or more series, (ii) unconditional and
irrevocable guarantees ("Guarantees") of Debt Securities issued by Cyprus Amax
Finance Corporation ("Finance"), a wholly-owned subsidiary of the Company,
(iii) shares of Preferred Stock ("Preferred Stock") in one or more series, (iv)
shares of Common Stock, without par value ("Common Stock"), or (v) Warrants
("Warrants") to purchase Debt Securities, Preferred Stock or Common Stock.
Finance may offer from time to time guaranteed Debt Securities, consisting of
debentures, notes, bonds and/or other unsecured evidences of indebtedness in
one or more series, guaranteed by the Company. The foregoing securities are
collectively referred to as the "Securities." The Securities will be offered at
an aggregate initial offering price not to exceed U.S.$500,000,000, at prices
and on terms to be determined at the time of sale.
The accompanying Prospectus Supplement sets forth with regard to the
particular Securities in respect of which this Prospectus is being delivered
(i) in the case of Debt Securities, the title, aggregate principal amount,
denominations (which may be in United States dollars, in any other currency,
currencies or currency unit, including the European Currency Unit), maturity,
rate, if any (which may be fixed or variable) or method of calculation thereof,
and time of payment of any interest, any terms for redemption at the option of
the Company (or, in the case of Debt Securities issued by Finance, Finance) or
the holder, any terms for sinking fund payments, any conversion or exchange
rights, any listing on a securities exchange and the initial public offering
price and any other terms in connection with the offering and sale of such Debt
Securities, (ii) in the case of Preferred Stock, the designation, aggregate
principal amount, and stated value and liquidation preference per share,
initial public offering price, dividend rate (or method of calculation), dates
on which dividends shall be payable and dates from which interest shall accrue,
any redemption or sinking fund provisions, any conversion or exchange rights,
whether the Company has elected to offer the Preferred Stock in the form of
depositary shares, any listing of the Preferred Stock on a securities exchange,
and any other terms in connection with the offering and sale of such Preferred
Stock; (iii) in the case of Common Stock, the number of shares of Common Stock
and the terms of the offering thereof; and (iv) in the case of Warrants, the
number and terms thereof, the designation and the number of Securities issuable
upon their exercise, the exercise price, any listing of the Warrants or the
underlying Securities on a securities exchange and any other terms in
connection with the offering, sale and exercise of the Warrants. The Prospectus
Supplement will also contain information, as applicable, about certain United
States Federal income tax considerations relating to the Securities in respect
of which this Prospectus is being delivered.
The Senior Securities will rank equally with all other unsubordinated and
unsecured indebtedness of the Company. The Senior Subordinated Securities will
be subordinated to all existing and future Senior Indebtedness (as defined) of
the Company, and senior to all existing and future Subordinated Indebtedness
(as defined) of the Company. The Subordinated Securities will be subordinated
to all existing and future Senior Indebtedness (as defined) of the Company. All
or a portion of any Debt Securities may be issued in permanent global form.
The Company's Common Stock is listed on the New York Stock Exchange (Symbol:
"CYM"). Any Common Stock offered will be listed, subject to notice of issuance,
on such exchange. See "Price Range of Common Stock and Dividends."
The Company and Finance may sell Securities to or through one or more
underwriters, and also may sell Securities directly to other purchasers or
through agents. Such underwriters or agents may include Kidder, Peabody & Co.
Incorporated. The accompanying Prospectus Supplement sets forth the names of
any underwriters or agents involved in the sale of the Securities in respect of
which this Prospectus is being delivered, the principal amounts, if any, to be
purchased by underwriters and the compensation, if any, of such underwriters or
agents. See "Plan of Distribution" herein.
----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
----------
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
The date of this Prospectus is , 1994
<PAGE>
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS
OR IN THE PROSPECTUS SUPPLEMENT, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY, FINANCE OR ANY UNDERWRITER, AGENT OR DEALER. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES
OTHER THAN THE SECURITIES IN RESPECT OF WHICH THIS PROSPECTUS IS DELIVERED OR
AN OFFER OF ANY SECURITIES IN ANY JURISDICTION TO ANY PERSON WHERE SUCH AN
OFFER WOULD BE UNLAWFUL.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 ("Exchange Act") and in accordance therewith files
reports, proxy statements and other information with the Securities and
Exchange Commission ("Commission"). Such reports, proxy statements and other
information filed by the Company can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549 and at its Regional Offices located at
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511, and 7 World Trade Center, 13th Floor, New York, New York
10007. Copies of such material can be obtained at prescribed rates from the
Public Reference Section of the Commission, 450 Fifth Street, N.W. Plaza,
Washington, D.C. 20549. In addition, such reports and proxy statements can be
inspected at the offices of The New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005.
Finance is a wholly-owned subsidiary of the Company. It currently is not
independently subject to the information requirements of the Exchange
Act. Finance expects to receive a conditional exemption pursuant to Section
12(h) of the Exchange Act from the informational requirements of such Act and
anticipates that no independent reports concerning Finance will be sent to
holders of Debt Securities issued by Finance.
The Company and Finance have filed with the Commission a Registration
Statement on Form S-3 (the "Registration Statement") under the Securities Act
of 1933 (the "Securities Act") with respect to the Securities offered hereby.
This Prospectus, which constitutes a part of the Registration Statement, does
not contain all the information set forth in the Registration Statement in
accordance with the rules and regulations of the Commission, and reference is
hereby made to the Registration Statement and the exhibits thereto for further
information with respect to the Company, Finance and the Securities. The
Registration Statement and the exhibits thereto can be obtained from or
inspected and copied at the public reference facilities maintained by the
Commission as described above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant to
the Exchange Act are incorporated herein by reference:
1. Annual Report on Form 10-K for the year ended December 31, 1993.
2. Quarterly Report on Form 10-Q for the quarterly period ended March 31,
1994.
3. Report on Form 8-K, dated March 31, 1994.
4. The information set forth at "Pro Forma Condensed Combined Financial
Information" and pages F-1 through F-39 in the Report on Form 8-K, dated
September 24, 1993, in order to meet the requirements of Rule 3-05 and
Article 11 of Regulation S-X.
5. Report on Form 10-Q for the quarterly period ended September 30, 1993
for the purpose of updating the Pro Forma information filed in the
Report on Form 8-K dated September 24, 1993.
6. Registration Statement on Form 8-A, dated March 3, 1989, as amended, for
the Company's Preferred Share Purchase Rights.
7. Registration Statement on Form 10, dated July 11, 1985 for the Company's
Common Stock.
8. All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequently to
the date of this Prospectus and prior to the termination of the offering
of the Securities shall be deemed to be incorporated herein by
reference.
2
<PAGE>
Any statement contained herein or in a document all or a portion of which is
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent that
a statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein or in the
Prospectus Supplement modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will furnish without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon the request of
such person, a copy of any of the documents incorporated by reference herein,
except for the exhibits to such documents (unless such exhibits are
specifically incorporated by reference into such documents). Requests should
be directed to 9100 East Mineral Circle, Englewood, Colorado 80112 (telephone
(303) 643-5000), Attention: Investor Relations.
3
<PAGE>
THE COMPANY
On November 15, 1993, AMAX Inc. merged with and into Cyprus Minerals Company
to create one of the world's largest natural resource companies (the
"Cyprus/Amax Merger"). Cyprus Amax Minerals Company ("Cyprus Amax" or the
"Company") is a diversified mining company engaged, directly or through its
subsidiaries, in the exploration for and extraction, processing and marketing
of mineral resources. Cyprus Amax operates in three principal industry
segments: Copper, Coal, and Other (which includes lithium, gold, iron ore and
exploration). Cyprus Amax is among the world's largest producers of copper,
molybdenum, and lithium, and is one of the nation's largest coal producers.
The Company reviews possible business transactions from time to time and may
engage in business acquisitions or dispositions in the future. Cyprus Amax is
incorporated in Delaware and operates primarily in the United States. As of
December 31, 1993, Cyprus Amax employed approximately 10,750 employees.
The Company's principal executive office is located at 9100 East Mineral
Circle, Englewood, Colorado 80112, and its telephone number is (303) 643-5000.
Because the Company is primarily a holding company, conducting business
generally through its subsidiaries, the ability of the Company to meet its
obligations under the Debt Securities and its other indebtedness and to pay
dividends on its Preferred Stock and Common Stock will be dependent on the
earnings and cash flow of its subsidiaries and the ability of its subsidiaries
to pay dividends and to advance funds to the Company. In addition, the
Company's rights and the rights of its creditors and securities holders,
including the holders of the Securities, to participate in the assets of any
subsidiary upon such subsidiary's liquidation or recapitalization will be
subject to the prior claims of such subsidiary's creditors, except to the
extent that the Company may itself be a creditor with recognized claims
against any such subsidiary. A substantial amount of the Company's
consolidated debt represents claims of the creditors of the Company's
subsidiaries.
Finance is a wholly-owned subsidiary of the Company which was incorporated
under the laws of the state of Delaware on May 26, 1994. The primary purpose
of Finance is to issue guaranteed Debt Securities and to loan to or invest the
proceeds in the Company or subsidiaries. Finance will be prohibited from
issuing any capital stock to any person other than the Company and its
subsidiaries. Finance does not now, and in the near future does not expect to,
lease or own any material facilities or operating property. Finance's
principal executive office is located at 9100 East Mineral Circle, Englewood,
Colorado 80112, telephone (303) 643-5000.
USE OF PROCEEDS
Except as otherwise described in the accompanying Prospectus Supplement or
any Pricing Supplement, the net proceeds from the sale of Securities will be
used for general corporate purposes, which may include refinancings of
indebtedness, working capital, capital expenditures, acquisitions and
repurchases and redemptions of securities.
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS
TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS OF THE COMPANY
<TABLE>
<CAPTION>
THREE MONTHS
ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
------------ ---------------------------
1994 1993 1992 1991 1990 1989
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Consolidated ratio of earnings to fixed
charges (unaudited).................... 1.7x 3.3x (a) 2.5x 5.5x 17.3x
Consolidated ratio of earnings to fixed
charges and preferred stock dividends
(unaudited)............................ 1.5x 3.1x (b) 1.6x 3.4x 8.5x
</TABLE>
- --------
(a) Earnings for the year ended December 31, 1992 were inadequate to cover
fixed charges by $331,798,000.
(b) Earnings for the year ended December 31, 1992 were inadequate to cover
combined fixed charges and preferred stock dividend requirements by
$346,577,000.
4
<PAGE>
For purposes of the ratio of earnings to fixed charges, "earnings" includes
income before income taxes, the cumulative effect of a change in accounting
principle and fixed charges. "Fixed charges" consist of interest on all
indebtedness and that portion of rental expense that management believes to be
representative of interest. For purposes of calculating the ratio of earnings
to combined fixed charges and preferred stock dividends, the preferred stock
dividend requirements were assumed to be equal to the pretax earnings which
would be required to cover such dividend requirements. The amount of such
pretax earnings required to cover preferred stock dividends was computed using
tax rates for the applicable year. The foregoing ratios have not been adjusted
to reflect the adoption by the Company of SFAS 106.
PRICE RANGE OF COMMON STOCK AND DIVIDENDS
The Company's Common Stock is listed on the New York Stock Exchange under the
symbol ("CYM"). The following table sets forth, for the periods shown, the
range of high and low sales prices of the Common Stock on the New York Stock
Exchange and the cash dividends declared on the Common Stock:
<TABLE>
<CAPTION>
COMMON STOCK
-----------------------
DIVIDENDS
HIGH LOW DECLARED
------ ------ ---------
<S> <C> <C> <C>
1991
First quarter......................................... 23 7/8 17 1/2 .20
Second quarter........................................ 25 1/4 17 5/8 .20
Third quarter......................................... 22 7/8 18 1/4 .20
Fourth quarter........................................ 25 3/8 18 3/4 .20
1992
First quarter......................................... 23 3/4 18 1/2 .20
Second quarter........................................ 28 1/2 19 .20
Third quarter......................................... 32 26 5/8 .20
Fourth quarter........................................ 32 25 3/4 .25(1)
1993
First quarter......................................... 36 3/8 30 3/4 .20
Second quarter........................................ 33 1/8 22 7/8 .20
Third quarter......................................... 28 1/4 23 3/8 .20
Fourth quarter........................................ 26 5/8 21 1/4 .20
1994
First quarter......................................... 33 3/8 25 5/8 .20
Second quarter (through June 8)....................... 30 1/2 25 3/4 .20
</TABLE>
- --------
(1) Includes a special dividend of $.05 per share.
If shares of Common Stock or Securities convertible or exercisable for Common
Stock are being offered, a recent last sale price of the Common Stock will be
set forth on the cover page of the Prospectus Supplement.
Determinations by the Board of Directors of the Company of the amount and
timing of future dividends will be based upon the Company's earnings, cash
needs, capital requirements and other relevant factors. The Board of Directors
will continue to evaluate the Company's performance and the appropriateness of
dividends. It is currently anticipated that dividends will continue to be paid
during 1994.
There is no established trading market for the Company's Series A Convertible
Preferred Stock, which was issued in the Cyprus/Amax Merger.
5
<PAGE>
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
Debt Securities may be issued time to time in one or more series by the
Company or by Finance. In the event that any series of Debt Securities is
issued by Finance, such Debt Securities will be offered together with
unconditional and irrevocable guarantees issued by the Company. In the
following description, references to the Issuer refer to the Company, in the
case of a series of Debt Securities issued by the Company, and to the Company
and Finance, in the case of a series of Debt Securities issued by Finance.
The Debt Securities will constitute either indebtedness designated as Senior
Indebtedness ("Senior Securities"), indebtedness designated as Senior
Subordinated Indebtedness ("Senior Subordinated Securities") or indebtedness
designated as Subordinated Indebtedness ("Subordinated Securities"). The
particular terms of each series of Securities offered by a particular
Prospectus Supplement and, if such Debt Securities are offered by Finance, the
particular terms of the Guarantees offered in connection therewith, will be
described therein. Senior Securities, Senior Subordinated Securities and
Subordinated Securities will each be issued under a separate indenture
(individually an "Indenture" and collectively the "Indentures") to be entered
into prior to the issuance of such Debt Securities. The Indentures will be
substantially identical, except for provisions relating to subordination and
Guarantees. See "Subordination of Senior Subordinated Securities, Subordinated
Securities and Guarantees". There may be a separate Trustee (individually a
"Trustee" and collectively the "Trustees') under each Indenture. Information
regarding the Trustee under an Indenture will be included in any Prospectus
Supplement relating to the Debt Securities issued thereunder. The following
discussion includes a summary description of all material terms of the
Indentures, other than terms which are specific to a particular series of Debt
Securities and which will be described in the Prospectus Supplement relating to
such series. The following summaries do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all of the
provisions of the Indentures, including the definitions therein of certain
terms capitalized in this Prospectus. Wherever particular Sections or Articles
or defined terms of the Indentures are referred to herein or in a Prospectus
Supplement, such Sections or defined terms are incorporated herein or therein
by reference.
The Debt Securities may be issued from time to time in one or more series.
The particular terms of each series of Debt Securities offered by any
Prospectus Supplement or Prospectus Supplements will be described in such
Prospectus Supplement or Prospectus Supplements relating to such series.
Other than as set forth under "Certain Covenants of the Company," and only to
the extent applicable to the Debt Securities of a particular series, as
indicated in the applicable Prospectus Supplement, there are no provisions of
the Indentures which afford holders of the Debt Securities protection in the
event of a highly leveraged transaction involving the Company.
GENERAL
The Indentures do not limit the aggregate amount of Debt Securities which may
be issued thereunder, and Debt Securities may be issued thereunder from time to
time in separate series up to the aggregate amount from time to time authorized
by the Issuer for each series. Debt Securities of a series may be issuable in
registered form without coupons ("Registered Debt Securities"), in bearer form
with or without coupons attached ("Bearer Debt Securities") or in the form of
one or more Global Securities in registered or bearer form (each, a "Global
Security"). Bearer Debt Securities, if any, will be offered only to non-United
States persons and to offices located outside the United States of certain
United States financial institutions. The Senior Securities will be unsecured
and unsubordinated obligations of the Issuer and will rank equally and ratably
with other unsecured and unsubordinated indebtedness of the Issuer. The Senior
Subordinated Securities and the Subordinated Securities will be subordinated in
right of payment to the prior payment in full of the Senior Indebtedness (as
defined) of the Issuer, as described below under "Subordination of Subordinated
Securities" and in a Prospectus Supplement applicable to an offering of Senior
Subordinated Securities or Subordinated Securities.
6
<PAGE>
Any Debt Security issued by Finance will be unconditionally and irrevocably
guaranteed by the Company as to payment of principal, premium, if any, and
interest.
The applicable Prospectus Supplement or Prospectus Supplements will describe
the following terms of the series of Debt Securities in respect of which this
Prospectus is being delivered: (1) the Issuer (which may be the Company or
Finance) and title of such Debt Securities; (2) any limit on the aggregate
principal amount of such Debt Securities; (3) whether such Debt Securities will
be issued as Registered Debt Securities, Bearer Debt Securities or any
combination thereof, and any limitation on issuance of such Bearer Debt
Securities and any provisions regarding the transfer or exchange of such Bearer
Debt Securities, including exchange for Registered Debt Securities of the same
series; (4) whether any of such Debt Securities are to be issuable in global
form ("Global Security"), whether such Global Securities are to be issued in
temporary global form or permanent global form and, if so, the terms and
conditions, if any, upon which interests in such Securities in global form may
be exchanged, in whole or in part, for the individual Debt Securities
represented thereby; (5) the person to whom any interest on any Debt Security
of the series shall be payable if other than the person in whose name the Debt
Security is registered on the Regular Record Date; (6) the date or dates on
which such Debt Securities will mature; (7) the rate or rates of interest, if
any, or the method of calculation thereof, which such Debt Securities will
bear; (8) the date or dates from which any such interest will accrue, the
Interest Payment Dates on which any such interest on such Debt Securities will
be payable and the Regular Record Date for any interest payable on any Interest
Payment Date; (9) the place or places where the principal of, premium (if any)
and interest on such Debt Securities will be payable; (10) the period or
periods within which, the events upon the occurrence of which, and the price or
prices at which, such Debt Securities may, pursuant to any optional or
mandatory provisions, be redeemed or purchased, in whole or in part, by the
Issuer and any terms and conditions relevant thereto; (11) the obligation of
the Issuer, if any, to redeem or repurchase such Debt Securities at the option
of the Holders; (12) the denominations in which any such Debt Securities will
be issuable, if other than denominations of $1,000 and any integral multiple
thereof; (13) the currency, currencies or currency unit or units of payment of
principal of and any premium and interest on such Debt Securities if other than
U.S. dollars; (14) any index or formula used to determine the amount of
payments of principal of and any premium and interest on such Debt Securities;
(15) if the principal of or any premium or interest on such Debt Securities is
to be payable, at the election of the Issuer or a Holder thereof, in one or
more currencies or currency units other than that or those in which such Debt
Securities are stated to be payable, the currency, currencies or currency units
in which payment of the principal of and any premium and interest on Debt
Securities of such series as to which such election is made shall be payable,
and the periods within which and the terms and conditions upon which such
election is to be made; (16) if other than the principal amount thereof, the
portion of the principal amount of such Debt Securities of the series which
will be payable upon declaration of the acceleration of the Maturity thereof;
(17) the applicability of any provisions described under "Certain Covenants of
the Company"; (18) the applicability of any provisions described under
"Defeasance"; (19) the terms and conditions, if any, pursuant to which such
Debt Securities are convertible or exchangeable into Common Stock or other
securities of the Company or another corporation and (20) any other terms of
such Debt Securities not inconsistent with the provisions of the respective
Indentures.
Debt Securities may be issued at a discount from their principal amount.
United States Federal income tax considerations and other special
considerations applicable to any such Original Issue Discount Securities will
be described in the applicable Prospectus Supplement.
If the purchase price of any of the Debt Securities is denominated in a
foreign currency or currencies or a foreign currency unit or units or if the
principal of and any premium and interest on any series of Debt Securities is
payable in a foreign currency or currencies or a foreign currency unit or
units, the restrictions, elections, general tax considerations, specific terms
and other information with respect to such issue of Debt Securities and such
foreign currency or currencies or foreign currency unit or units will be set
forth in the applicable Prospectus Supplement.
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GUARANTEES
The Company will unconditionally and irrevocably guarantee, on a senior,
senior subordinated or subordinated basis, the due and punctual payment of
principal of, premium, if any, and interest on any Debt Securities that are
issued by Finance, and the due and punctual payment of any sinking fund
payments thereon, when and as the same shall become due and payable, whether at
the maturity date, by declaration of acceleration, call for redemption or
otherwise. See "Subordination of Senior Subordinated Securities, Subordinated
Securities and Guarantees."
SENIOR SECURITIES
The Senior Securities will rank pari passu with all other unsecured and
unsubordinated debt of the Issuer and senior to the Senior Subordinated
Securities and Subordinated Securities.
SUBORDINATION OF SENIOR SUBORDINATED SECURITIES, SUBORDINATED SECURITIES AND
GUARANTEES
The indebtedness evidenced by the Senior Subordinated Securities and the
Subordinated Securities will be subordinated and junior in right of payment to
the extent set forth in the respective Indenture to the prior payment in full
of amounts then due on all Senior Indebtedness (as defined below). No payment
shall be made by the Issuer on account of principal of (or premium, if any) or
interest on the Senior Subordinated Securities or the Subordinated Securities
or on account of the purchase or other acquisition of Senior Subordinated
Securities or the Subordinated Securities, if the maturity of any of the Senior
Subordinated Securities or the Subordinated Securities shall have been
accelerated, until all amounts due have been paid on all outstanding Senior
Indebtedness, or if there shall have occurred and be continuing (i) a default
in the payment of principal (or premium, if any) or interest on any Senior
Indebtedness beyond any applicable grace period with respect thereto, or any
event of default with respect to any Senior Indebtedness resulting in the
acceleration of the maturity of such Senior Indebtedness, unless and until such
default or event of default shall have been cured or waived or shall have
ceased to exist and such acceleration shall have been rescinded or annulled or
(ii) any such default in payment or event of default shall be the subject of a
judicial proceeding. By reason of these provisions in the event of default of
any Senior Indebtedness, whether now outstanding or hereafter issued, payments
of principal of (and premium, if any) and interest on the Senior Subordinated
Securities or the Subordinated Securities may not be permitted to be made until
such default is cured or such Senior Indebtedness is paid in full.
Upon any distribution of assets of the Issuer upon any receivership,
dissolution, winding-up, liquidation, reorganization or similar proceedings of
the Issuer, whether voluntary or involuntary, or in bankruptcy or insolvency,
all principal of (and premium, if any) and interest due upon all Senior
Indebtedness must be paid in full before the Holders of the Senior Subordinated
Securities and the Subordinated Securities or the Trustee is entitled to
receive or retain any assets so distributed in respect of the Senior
Subordinated Securities or the Subordinated Securities. By reason of this
provision, in the event of insolvency Holders of the Senior Subordinated
Securities and the Subordinated Securities may recover less, ratably, than
other creditors of the Issuer, including holders of Senior Indebtedness.
"Senior Indebtedness" means, when used with respect to any series of Senior
Subordinated Securities or Subordinated Securities, the principal of (and
premium, if any) and interest on (a) all indebtedness of the Issuer (including
indebtedness of others guaranteed by the Issuer) other than the Subordinated
Securities which is (i) for money borrowed or (ii) evidenced by a note or
similar instrument given in connection with the acquisition of any businesses,
properties or assets of any kind, (b) obligations of the Issuer as lessee under
leases required to be capitalized on the balance sheet of the lessee under
generally accepted accounting principles, and (c) amendments, renewals,
extensions, modifications and refunding of any such indebtedness or obligation,
in any such case whether outstanding on the date of the Senior Subordinated
Indenture or the Subordinated Indenture or thereafter created, incurred or
assumed, except that, with respect to the Senior Subordinated Securities, any
particular indebtedness, obligation, liability, guaranty, assumption, deferral,
renewal, extension or refunding shall not constitute "Senior Indebtedness" if
it is expressly stated in the
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governing terms, or in the assumption or guarantee, thereof that the
indebtedness involved is not senior in right of payment to the Senior
Subordinated Securities or that such indebtedness is pari passu with or junior
to the Senior Subordinated Securities and, with respect to Subordinated
Securities, any particular indebtedness, obligation, liability, guaranty,
assumption, deferral, renewal, extension or refunding shall not constitute
"Senior Indebtedness" if its expressly stated in the governing terms, or in the
assumption or guarantee, thereof that the indebtedness involved is not senior
in right of payment to the Subordinated Securities or that such indebtedness is
pari passu with or junior to the Subordinated Securities. As of March 31, 1994,
the amount of Senior Indebtedness of the Company was approximately $1.34
billion. Finance has no indebtedness at the date of this Prospectus. The Senior
Subordinated Indenture and Subordinated Indenture do not prohibit or limit the
incurrence of additional Senior Indebtedness.
If this Prospectus is being deliver in connection with a series of Senior
Subordinated Securities or Subordinated Securities, the accompanying Prospectus
Supplement or the information incorporated herein by reference will set forth
the approximate amount of Senior Indebtedness outstanding as of the end of the
Issuer's most recent fiscal quarter.
In the event that Senior Subordinated Securities or Subordinated Securities
are issued by Finance, the related Guarantees issued by the Company will be
subordinate and junior in right of payment to Senior Indebtedness of the
Company on substantially the same terms and conditions as the obligations of
Finance under the Senior Subordinated Securities or the Subordinated
Securities, as the case may be, will be subordinate and junior in right of
payment to Senior Indebtedness.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Debt Securities are issuable in definitive form as Registered Debt
Securities, as Bearer Debt Securities or both. Unless otherwise indicated in an
applicable Prospectus Supplement, Bearer Debt Securities will have interest
coupons attached. Debt Securities are also issuable in temporary or permanent
global form.
Registered Debt Securities of any series will be exchangeable for other
Registered Debt Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations. In addition, with
respect to any series of Bearer Debt Securities, at the option of the holder,
subject to the terms of the Indenture, such Bearer Debt Securities (with all
unmatured coupons, except as provided below, and all matured coupons in
default) will be exchangeable into Registered Debt Securities of the same
series of any authorized denominations and of a like aggregate principal amount
and tenor. Bearer Debt Securities surrendered in exchange for Registered Debt
Securities between a Regular Record Date or a Special Record Date and the
relevant date for payment of interest shall be surrendered without the coupon
relating to such date for payment of interest, and interest accrued as of such
date will not be payable in respect of the Registered Debt Security issued in
exchange for such Bearer Debt Security, but will be payable only to the holder
of such coupon when due in accordance with the terms of the Indenture.
In connection with its sale during the restricted period (as defined below),
no Bearer Debt Security (including a Debt Security in permanent global form
that is either a Bearer Debt Security or exchangeable for Bearer Debt
Securities) shall be mailed or otherwise delivered to any location in the
United States (as defined under "--Limitations on Issuance of Bearer Debt
Securities") and a Bearer Debt Security may be delivered outside the United
States in definitive form in connection with its original issuance only if
prior to delivery the person entitled to receive such Bearer Debt Security
furnishes written certification, in the form required by the Indenture, to the
effect that such Bearer Debt Security is owned by: (a) a person (purchasing for
its own account) who is not a United States person (as defined under "--
Limitations on Issuance of Bearer Debt Securities"); (b) a United States person
who (i) is a foreign branch of a United States financial institution purchasing
for its own account or for resale or (ii) acquired such Bearer Debt Security
through the foreign
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branch of a United States financial institution and who for purposes of the
certification holds such Bearer Debt Security through such financial
institution on the date of certification and, in either case, such United
States financial institution certifies to the Issuer or the distributor selling
the Bearer Debt Security within a reasonable time stating that it agrees to
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United
States Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder, or (c) a United States or foreign financial institution
for purposes of resale within the "restricted period" as defined in United
States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7). A financial
institution described in clause (c) of the preceding sentence (whether or not
also described in clauses (a) and (b)) must certify that it has not acquired
the Bearer Debt Security for purpose of resale, directly or indirectly, to a
United States person or to a person within the United States or its
possessions. In the case of a Bearer Debt Security in permanent global form,
such certification must be given in connection with notation of a beneficial
owner's interest therein in connection with the original issuance of such Debt
Security or upon exchange of a portion of a temporary global Debt Security.
Debt Securities may be presented for exchange as provided above, and
Registered Debt Securities may be presented for registration of transfer (with
the form of transfer endorsed thereon duly executed), at the office or agency
of the Issuer maintained for such purposes and at any other office or agency
maintained for such purpose with respect to any series of Debt Securities and
referred to in the applicable Prospectus Supplement, without a service charge
and upon payment of any taxes and other governmental charges as described in
the Indenture. Such transfer or exchange will be effected upon the Issuer or
its agent, as the case may be, being satisfied with the documents of title and
identity of the person making the request.
In the event of any redemption in part, the Issuer shall not be required to
(i) issue, register the transfer of or exchange Debt Securities of any series
during a period beginning at the opening of business 15 days prior to the
selection of Debt Securities of that series for redemption and ending on the
close of business on (A) if Debt Securities of the series are issued only as
Registered Debt Securities, the day of mailing of the relevant notice of
redemption and (B) if Debt Securities of the series are issued as Bearer Debt
Securities, the day of the first publication of the relevant notice of
redemption except that, if Securities of the series are also issued as
Registered Debt Securities and there is no publication, the day of mailing of
the relevant notice of redemption; (ii) register the transfer of or exchange
any Registered Debt Security, or portion thereof, called for redemption, except
the unredeemed portion of any Registered Debt Security being redeemed in part;
or (iii) exchange any Bearer Debt Security called for redemption, except to
exchange such Bearer Debt Security for a Registered Debt Security of that
series and like tenor which is simultaneously surrendered for redemption.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of (and any premium) and interest on Bearer Debt Securities will
be payable, subject to any applicable laws and regulations, in the designated
currency or currency unit, at the offices of such Paying Agents ("Paying
Agents") outside the United States as the Issuer may designate from time to
time, at the option of the holder, by check or by transfer to an account
maintained by the payee with a bank located outside the United States;
provided, however, that the written certification described above under "--
Form, Exchange, Registration and Transfer" has been delivered prior to the
first actual payment of interest. Unless otherwise indicated in the applicable
Prospectus Supplement, payment of interest on Bearer Debt Securities on any
Interest Payment Date will be made only against surrender to the Paying Agent
of the coupon relating to such Interest Payment Date. No payment with respect
to any Bearer Debt Security will be made at any office or agency of the Issuer
in the United States or by check mailed to any address in the United States or
by transfer to any account maintained with a bank located in the United States,
nor shall any payments be made in respect of Bearer Debt Securities upon
presentation to the Issuer or its designated Paying Agents within the United
States. Notwithstanding the foregoing, payments of principal of (and any
premium) and interest on Bearer Debt Securities denominated and payable in U.S.
dollars will be made at the office of the Issuer's Paying Agent in the United
States, if (but only if) payment of the full amount thereof in U.S. dollars at
all offices or agencies outside the United States is illegal or effectively
precluded by exchange controls or other similar restrictions.
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Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of (and any premium) and interest on Registered Debt Securities
will be made in the designated currency or currency unit at the office of such
Paying Agent or Paying Agents as the Issuer may designate from time to time,
except that at the option of the Issuer payment of any interest may be made by
check mailed to the address of the person entitled thereto as such address
shall appear in the Security Register. Unless otherwise indicated in an
applicable Prospectus Supplement, payment of any installment of interest on
Registered Debt Securities will be made to the person in whose name such
Registered Debt Security is registered at the close of business on the Regular
Record Date for such interest.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Corporate Trust Office of the Trustee will be designated as a Paying Agent for
the Trustee for payments with respect to Debt Securities which are issuable
solely as Registered Debt Securities, and the Issuer will maintain a Paying
Agent outside the United States for payments with respect to Debt Securities
(subject to limitations described above in the case of Bearer Debt Securities)
which are issued solely as Bearer Debt Securities, or as both Registered Debt
Securities and Bearer Debt Securities. Any Paying Agents outside the United
States and any other Paying Agents in the United States initially designated by
the Issuer for the Debt Securities will be named in an applicable Prospectus
Supplement. The Issuer may at any time designate additional Paying Agents or
rescind the designation of any Paying Agent or approve a change in the office
through which any Paying Agent acts, except that, if Debt Securities of a
series are issued solely as Registered Debt Securities, the Issuer will be
required to maintain a Paying Agent in each Place of Payment for such series
and, if Debt Securities of a series are issued as Bearer Securities, the Issuer
will be required to maintain (i) a Paying Agent in the United States for
principal payments with respect to any Registered Debt Securities of the series
(and for payments with respect to Bearer Debt Securities of the series in the
circumstances described above, but not otherwise), and (ii) a Paying Agent in a
Place of Payment located outside the United States where Securities of such
series and any coupons appertaining thereto may be presented and surrendered
for payment.
All moneys paid by the Issuer to a Paying Agent for the payment of principal
of and any premium or interest on any Debt Security which remain unclaimed at
the end of two years after such principal, premium or interest shall have
become due and payable will (subject to applicable escheat laws) be repaid to
the Issuer and the holder of such Debt Security or any coupon will thereafter
look only to the Issuer for payment thereof.
TEMPORARY GLOBAL SECURITIES
If so specified in the applicable Prospectus Supplement, all or any portion
of the Debt Securities of a series which are issuable as Bearer Debt Securities
will initially be represented by one or more temporary global Debt Securities,
without interest coupons, to be deposited with a common depository in London
for the Euroclear System ("Euroclear") and CEDEL S.A. ("CEDEL") for credit to
the designated accounts. On and after the date determined as provided in any
such temporary global Debt Security and described in the applicable Prospectus
Supplement, each such temporary global Debt Security will be exchangeable for
definitive Bearer Debt Securities, definitive Registered Debt Securities or all
or a portion of a permanent global security, or any combination thereof, as
specified in the applicable Prospectus Supplement, but, unless otherwise
specified in the applicable Prospectus Supplement, only upon written
certification in the form and to the effect described under "--Form, Exchange,
Registration and Transfer." No Bearer Debt Security delivered in exchange for a
portion of a temporary global Debt Security will be mailed or otherwise
delivered to any location in the United States in connection with such
exchange.
Unless otherwise specified in the applicable Prospectus Supplement, interest
in respect of any portion of a temporary global Debt Security payable in
respect of an Interest Payment Date occurring prior to the issuance of
definitive Debt Securities or a permanent global Subordinated Debt Security
will be paid to each of Euroclear and CEDEL with respect to the portion of the
temporary global Debt Security held for its
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account. Each of Euroclear and CEDEL will undertake in such circumstances to
credit such interest received by it in respect of a temporary global Debt
Security to the respective accounts for which it holds such temporary global
Debt Security only upon receipt in each case of written certification in the
form and to the effect described above under "--Form, Exchange, Registration
and Transfer" as of the relevant Interest Payment Date regarding the portion of
such temporary global Debt Security on which interest is to be so credited.
PERMANENT GLOBAL SECURITIES
If any Debt Securities of a series are issuable in permanent global form, the
applicable Prospectus Supplement will describe the circumstances, if any, under
which beneficial owners of interests in any such permanent global Debt
Securities may exchange such interests for Debt Securities of such series and
of like tenor and principal amount in any authorized form and denomination. No
Bearer Debt Security delivered in exchange for a portion of a permanent global
Debt Security shall be mailed or otherwise delivered to any location in the
United States in connection with such exchange.
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in the form
of one or more Global Securities that will be deposited with, or on behalf of,
a Depositary ("Depositary") or its nominee identified in the applicable
Prospectus Supplement. In such a case, one or more Global Securities will be
issued in a denomination or aggregate denominations equal to the portion of the
aggregate principal amount of Outstanding Debt Securities of the series to be
represented by such Global Security or Securities. Unless and until it is
exchanged in whole or in part for Debt Securities in registered form, a Global
Security may not be registered for transfer or exchange except as a whole by
the Depositary for such Global Security 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 nominee to a successor Depositary or a
nominee of such successor Depositary and except in the circumstances described
in the applicable Prospectus Supplement. (Sections 2.4 and 3.5).
The specific terms of the depositary arrangement with respect to any portion
of a series of Debt Securities to be represented by a Global Security will be
described in the applicable Prospectus Supplement. The Issuer expects that the
following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Security to be deposited
with or on behalf of a Depositary will be represented by a Global Security
registered in the name of such Depositary or its nominee. Upon the issuance of
such Global Security, and the deposit of such Global Security with or on behalf
of the Depositary for such Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts
of the Debt Securities represented by such Global Security to the accounts of
institutions that have accounts with such Depositary or its nominee
("participants"). The accounts to be credited will be designated by the
underwriters or agents of such Debt Securities or by the Company, if such Debt
Securities are offered and sold directly by the Issuer. Ownership of beneficial
interest in such Global Security will be limited to participants or Persons
that may hold interests through participants. Ownership of beneficial interests
by participants in such Global Security will be shown on, and the transfer of
that ownership interest will be effected only through, records maintained by
the Depositary or its nominee for such Global Security. Ownership of beneficial
interests in such Global Security by Persons that hold through participants
will be shown on, and the transfer of that ownership interest within such
participant will be effected only through, records maintained by such
participant. The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in certificated form. The
foregoing limitations and such laws may impair the ability to transfer
beneficial interests in such Global Securities.
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So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or Holder of the Securities
represented by such Global Security for all purposes under the applicable
Indenture. Unless otherwise specified in the applicable Prospectus Supplement,
owners of beneficial interests in such Global Security will not be entitled to
have Debt Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of Debt Securities of such series in certificated form and will not
be considered the Holders thereof for any purposes under the applicable
Indenture (Sections 2.4 and 3.5). Accordingly, each Person owning a beneficial
interest in such Global Security must rely on the procedures of the Depositary
and, if such Person is not a participant, on the procedures of the participant
through which such Person owns its interest, to exercise any rights of a
Holder under the applicable Indenture. The Issuer understands that under
existing industry practices, if the Issuer requests any action of Holders or
an owner of a beneficial interest in such Global Security desires to give any
notice or take any action a Holder is entitled to give or take under an
Indenture, the Depositary would authorize the participants to give such notice
or take such action, and participants would authorize beneficial owners owning
through such participants to give such notice or take such action or would
otherwise act upon the instructions of beneficial owners owning through them.
Principal of and any premium and interest on a Global Security will be
payable in the manner described in the applicable Prospectus Supplement.
LIMITATIONS ON ISSUANCE OF BEARER DEBT SECURITIES
In compliance with United States federal tax laws and regulations, Bearer
Debt Securities (including securities in permanent global form that are either
Bearer Debt Securities or exchangeable for Bearer Debt Securities) will not be
offered or sold during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) (generally, the first 40
days after the closing date, and, with respect to unsold allotments, until
sold) within the United States or to United States persons (each as defined
below) other than to an office located outside the United States of a United
States financial institution (as defined in Section 1.165-12(c)(1)(v) of the
United States Treasury Regulations), purchasing for its own account or for
resale or for the account of certain customers, that provides a certificate
stating that it agrees to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Code and the United States Treasury
Regulations thereunder, or to certain other persons described in Section
1.163-5(c)(2)(i)(D)(1)(iii)(B) of the United States Treasury Regulations.
Moreover, such Bearer Debt Securities will not be delivered in connection with
their sale during the restricted period within the United States. Any
underwriters and dealers participating in the offering of Bearer Debt
Securities must covenant that they will not offer or sell during the
restricted period any Bearer Debt Securities within the United States or to
United States persons (other than the persons described above) or deliver in
connection with the sale of Bearer Debt Securities during the restricted
period any Bearer Debt Securities within the United States and that they have
in effect procedures reasonably designed to ensure that their employees and
agents who are directly engaged in selling the Bearer Debt Securities are
aware of the restrictions described above. No Bearer Debt Security (other than
a temporary global Bearer Debt Security) will be delivered in connection with
its original issuance nor will interest be paid on any Bearer Debt Security
until receipt by the Issuer of the written certification described above under
"--Form, Exchange, Registration and Transfer." Each Bearer Debt Security,
other than a temporary global Bearer Debt Security, will bear a legend to the
following effect: "Any United States person who holds this obligation will be
subject to limitations under the United States income tax laws, including the
limitations provided in Sections 165(j) and 1287(a) of the Internal Revenue
Code."
As used herein, "United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust
the income of which is subject to United States federal income taxation
regardless of its source, and "United States" means the United States of
America (including the states and the District of Columbia) and its
possessions.
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CERTAIN COVENANTS OF THE COMPANY
If so indicated in the applicable Prospectus Supplement with respect to a
particular series of Debt Securities, the Company will be subject to either or
both of the following covenants.
Restrictions on Secured Debt.
If the Company or any Restricted Subsidiary shall incur, issue, assume, or
guarantee any loans, whether or not evidenced by any evidence of indebtedness,
for money borrowed ("Debt") secured by a mortgage, pledge, or lien ("Mortgage")
on any Principal Property of the Company or any Restricted Subsidiary, or on
any share of stock or Debt of any Restricted Subsidiary, the Company will
secure or cause such Restricted Subsidiary to secure any Debt Securities to
which this covenant is applicable equally and ratably with (or, at the
Company's option, prior to) such secured Debt, unless the aggregate amount of
all such secured Debt, together with all Attributable Debt of the Company and
its Restricted Subsidiaries with respect to sale and leaseback transactions
involving Principal Properties (with the exception of such transactions which
are excluded as described in "Restrictions on Sales and Leasebacks" below),
would not exceed 10 percent of Consolidated Net Tangible Assets.
The above restriction does not apply to, and there will be excluded from
secured Debt in any computation under such restriction, Debt secured by (i)
Mortgages on property of, or on any shares of stock of or Debt of, any
corporation existing at the dates of the respective Indentures or at the time
such corporation becomes a Restricted Subsidiary; (ii) Mortgages in favor of
the Company or a Restricted Subsidiary;(iii) Mortgages in favor of governmental
bodies to secure progress, advance or certain other payments;(iv) Mortgages on
property, assets, shares of stock or Debt existing at the time of acquisition
thereof (including acquisition through merger or consolidation), and purchase
money and construction Mortgages which are entered into within 180 days after
the acquisition or construction; (v) Mortgages securing industrial revenue or
pollution control bonds; (vi) Mortgages created in connection with a project
financed with, and created to secure, a Nonrecourse Obligation; and (vii) any
extension, renewal, or refunding of any Mortgage referred to in the foregoing
clauses (i) through (vi) inclusive (Section 10.8). In addition, the above
restriction does not apply to, and there will be excluded from secured Debt in
any corporation under such restriction, the sale or other transfer of the
following: (i) minerals in place for a period of time until, or in an amount
such that, the purchaser will realize therefrom a specified amount of money
(however determined) or a specified amount of such minerals, or (ii) any other
interest in property of the character commonly referred to as a "production
payment."
Restrictions on Sales and Leasebacks.
Neither the Company nor any Restricted Subsidiary may enter into any sale and
leaseback transaction involving any Principal Property, unless the aggregate
amount of all Attributable Debt of the Company and its Restricted Subsidiaries
with respect to all such transactions plus all secured Debt (with the exception
of secured Debt which is excluded as described in "Restrictions on Secured
Debt" above) would not exceed 10 percent of Consolidated Net Tangible Assets.
This restriction does not apply to, and there will be excluded from
Attributable Debt in any computation under such restriction, any sale and
leaseback transaction if (i) the lease is for a period, including renewal
rights, not in excess of three years; (ii) the sale or transfer of the
Principal Property is made within 180 days after its acquisition or
construction; (iii) the lease secures or relates to industrial revenue or
pollution control bonds; (iv) the transaction is between the Company and a
Restricted Subsidiary or between Restricted Subsidiaries; (v) the lease payment
obligation is created in connection with a project financed with, and such
obligation constitutes, a Nonrecourse Obligation; or (vi) the Company or such
Restricted Subsidiary, within 180 days after the sale is completed, applies to
the retirement of Funded Debt of the Company or a Restricted Subsidiary, or to
the purchase of other property which will constitute Principal Property of a
value at least equal to the value of the Principal Property leased, an amount
not less than the greater of (a) the net proceeds of the sale of the Principal
Property leased or (b) the fair market value of the Principal Property leased.
The
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amount to be applied to the retirement of Funded Debt shall be reduced by (x)
the principal amount of any debentures or notes (including the Debt Securities)
of the Company or a Restricted Subsidiary surrendered within 180 days after
such sale to the applicable trustee for retirement and cancellation and (y) the
principal amount of Funded Debt, other than items referred to in the preceding
clause (x), voluntarily retired by the Company or a Restricted Subsidiary
within 180 days after such sale (Section 10.9).
Certain Definitions Applicable to Covenants.
"Attributable Debt" is defined to mean the total net amount of rent required
to be paid during the remaining primary term of any particular lease under
which any person is at the time liable, discounted at the rate of 10 1/8% per
annum (Section 1.1).
"Consolidated Net Tangible Assets" is defined to mean the aggregate amount of
assets (less applicable reserves and other properly deductible items) after
deducting (1) all liabilities, other than deferred income taxes, liabilities
resulting from any charge in connection with the adoption of SFAS 106, and
Funded Debt, and (2) all goodwill, trade names, trademarks, patents,
organization expenses, and other like intangibles of the Company and its
consolidated subsidiaries (Section 1.1).
"Funded Debt" is defined as (i) all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the determination is
made or having a maturity of 12 months or less but by its terms being renewable
or extendable beyond 12 months from such date at the option of the borrower and
(ii) rental obligations payable more than 12 months from such date under leases
which are capitalized in accordance with generally accepted accounting
principles (Section 1.1).
"Nonrecourse Obligation" is defined to mean indebtedness or lease payment
obligations substantially related to (i) the acquisition of assets not owned as
of December 31, 1993 by the Company or any of its Restricted Subsidiaries or
(ii) the financing of a project involving the development of properties of the
Company or any of its Restricted Subsidiaries, as to which the obligee with
respect to such indebtedness or obligation has no recourse to the general
corporate funds or the assets, in general, of the Company or any of its
Restricted Subsidiaries (Section 10.8).
"Principal Property" is defined to mean any mine, mill, converting plant,
manufacturing plant, or other facility owned by the Company or any Restricted
Subsidiary of the Company which is located within the present 50 states of the
United States and the gross book value of which (without deduction of any
depreciation reserves) on the date as of which the determination is being made
exceeds 2.5 percent of Consolidated Net Tangible Assets, other than properties
or any portion of a particular property which in the opinion of the Board of
Directors is not of material importance to the Company's business (Section
1.1).
"Restricted Subsidiary" is defined to mean a Subsidiary of the Company
substantially all the property of which is located, or substantially all of the
business of which is carried on, within the present 50 states of the United
States and which owns a Principal Property, excluding however a Subsidiary of
the Company which is primarily engaged in the development and sale or financing
of real property (Section 1.1).
"Subsidiary" of the Company is defined to mean a corporation more than 50
percent of the voting stock of which is, directly or indirectly, owned by the
Company, one or more Subsidiaries of the Company, or the Company and one or
more Subsidiaries (Section 1.1).
EVENTS OF DEFAULT
The following are Events of Default under the Indentures with respect to Debt
Securities of any series: (a) failure to pay principal of or premium, if any,
on any Debt Security of that series when due; (b) failure to pay any interest
on any Debt Security of that series when due, continued for 30 days; (c)
failure to make any sinking fund payment, when due, in respect of any Debt
Security of that series; (d) failure to perform any other covenant of the
Company in the applicable Indenture (other than a covenant included in such
Indenture
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solely for the benefit of a series of Debt Securities other than that series),
continued for 60 days after written notice as provided in the respective
Indentures; (e) failure to pay at the final maturity thereof the principal of,
or acceleration of, any indebtedness for money borrowed by the Issuer in
excess of $20 million, if such indebtedness is not discharged, or such
acceleration is not annulled, as provided in the respective Indentures; (f)
certain events of bankruptcy, insolvency or reorganization; and (g) any other
Event of Default provided with respect to Debt Securities of that series
(Section 5.1).
If an Event of Default with respect to Outstanding Debt Securities of any
series shall occur and be continuing, either the Trustee or the Holders of at
least 25% in principal amount of the Outstanding Debt Securities of that
series by notice as provided in the respective Indentures may declare the
principal amount (or, if the Debt Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified
in the terms of that series) of all Debt Securities of that series to be due
and payable immediately. However, at any time after a declaration of
acceleration with respect to Debt Securities of any series has been made, but
before a judgment or decree based on such acceleration has been obtained, the
Holders of a majority in principal amount of the Outstanding Debt Securities
of that series may, under certain circumstances, rescind and annul such
acceleration (Section 5.2). For information as to waiver or defaults, see
"Modification and Waiver" below.
The Indentures provide that, subject to the duty of the respective Trustees
thereunder during an Event of Default to act with the required standard of
care, such Trustee will be under no obligation to exercise any of its rights
or powers under the respective Indentures at the request or direction of any
of the Holders, unless such Holders shall have offered to such Trustee
reasonable security or indemnity. (Sections 6.1 and 6.3) Subject to certain
provisions, including those requiring security or indemnification of the
Trustees, the Holders of a majority in principal amount of the Outstanding
Debt Securities of any series will have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
applicable Trustee, or exercising any trust or power conferred on such
Trustee, with respect to the Debt Securities of that series (Section 5.12).
No Holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the applicable Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the applicable
Trustee written notice of a continuing Event of Default (as defined) and
unless also the Holders of at least 25 percent in aggregate principal amount
of the outstanding Debt Securities of the same series shall have made written
request, and offered reasonable indemnity, to the Trustee to institute such
proceeding as trustee, and the Trustee shall not have received from the
Holders of a majority in aggregate principal amount of the outstanding Debt
Securities of the same series a direction inconsistent with such request and
shall have failed to institute such proceeding within 60 days (Section 5.7).
However, such limitations do not apply to a suit instituted by a Holder of a
Debt Security for enforcement of payment of the principal of and interest on
such Debt Security on or after the respective due dates expressed in such Debt
Security (Section 5.8).
The Issuer will be required to furnish to the Trustees annually a statement
as to the performance by the Issuer of its obligations under the respective
Indentures and as to any default in such performance(Section 10.4).
MODIFICATION AND WAIVER
Modifications and amendments of the respective Indentures may be made by the
Issuer and the Trustee with the consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Debt Securities of
each series affected thereby; provided, however, that no such modification or
amendment may, without the consent of the Holder of each Outstanding Debt
Security affected thereby: (a) change the Stated Maturity of the principal of,
or any installment of principal of, or interest on, any Debt Security; (b)
reduce the principal amount of, the rate of interest on, or the premium, if
any, payable upon the redemption of, any Debt Security; (c) reduce the amount
of principal of an Original Issue Discount Security payable upon acceleration
of the Maturity thereof; (d) change the place or currency of payment of
principal
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of, or premium, if any, or interest on any Debt Security; (e) impair the right
to institute suit for the enforcement of any payment on or with respect to any
Debt Security on or after the Stated Maturity or Redemption Date thereof; or
(f) reduce the percentage in principal amount of Outstanding Debt Securities of
any series, the consent of the Holders of which is required for modification or
amendment of the applicable Indenture or for waiver of compliance with certain
provisions of the applicable Indenture or for waiver of certain defaults
(Section 9.2).
The Holders of at least a majority in aggregate principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
Debt Securities of that series waive, insofar as that series is concerned,
compliance by the Company with certain covenants of the applicable Indenture
(Section 10.10). The Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any series may, on behalf of the Holders of
all Debt Securities of that series, waive any past default under the applicable
Indenture with respect to that series, except a default in the payment of the
principal of, or premium, if any, or interest on, any Debt Security of that
series or in respect of a provision which under the applicable Indenture cannot
be modified or amended without the consent of the Holder of each Outstanding
Debt Security of that series affected (Section 5.13).
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Issuer, without the consent of any Holders of Outstanding Debt
Securities, may consolidate with or merge into, or transfer or lease its assets
substantially as an entirety to, any Person, and any other Person may
consolidate with or merge into, or transfer or lease its assets substantially
as an entirety to, the Issuer, provided (a) that the Person (if other than the
Issuer) formed by such consolidation or into which the Issuer is merged or
which acquires or leases the assets of the Company substantially as an entirety
is a Person organized and existing under the laws of any United States
jurisdiction and assumes the Issuer's obligations on the Debt Securities and
under the respective Indentures, (b) that after giving effect to such
transaction no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have happened and be
continuing, and (c) that certain other conditions are met (Article Eight).
DEFEASANCE
If so indicated in the applicable Prospectus Supplement with respect to the
Debt Securities of a series, the Issuer, at its option, (i) will be discharged
from any and all obligations in respect of the Debt Securities of such series
(except for certain obligations to register the transfer or exchange of Debt
Securities of such series, to replace destroyed, stolen, lost or mutilated Debt
Securities of such series, and to maintain an office or agency in respect of
the Debt Securities and hold moneys for payment in trust) or (ii) will be
released from its obligations to comply with the covenants that are specified
under "Certain Covenants of the Company" above with respect to the Debt
Securities of such series and the occurrence of an event described in clause
(d) under "Events of Default" above with respect to any defeased covenant and
clauses (e) and (g) of the "Events of Default" above shall no longer be an
Event of Default if, in either case, the Issuer irrevocably deposits with the
Trustee, in trust, money or U.S. Government Obligations that through the
payment of interest thereon and principal thereof in accordance with their
terms will provide money in an amount sufficient to pay all the principal of
(and premium, if any) and any interest on the Debt Securities of such series on
the dates such payments are due (which may include one or more redemption dates
designated by the Issuer) in accordance with the terms of such Debt Securities.
Such a trust may only be established if, among other things, (a) no Event of
Default or event which with the giving of notice or lapse of time, or both,
would become an Event of Default under the applicable Indenture shall have
occurred and be continuing on the date of such deposit, (b) no Event of Default
described under clause (f) under "Events of Default" above or event which with
the giving of notice or lapse of time, or both, would become an Event of
Default described under such clause (f) shall have occurred and be continuing
at any time during the period ending on the 91st day following such date of
deposit, and (c) the Issuer shall have delivered an Opinion of Counsel to the
effect that the Holders of the Debt Securities will not recognize gain or loss
for United States Federal income tax purposes as a result of such deposit or
defeasance and will be subject to United States Federal income tax in
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the same manner as if such defeasance had not occurred. In the event the Issuer
omits to comply with its remaining obligations under the applicable Indenture
after a defeasance of such Indenture with respect to the Debt Securities of any
series as described under clause (ii) above and the Debt Securities of such
series are declared due and payable because of the occurrence of any undefeased
Event of Default, the amount of money and U.S. Government Obligations on
deposit with the Trustee may be insufficient to pay amounts due on the Debt
Securities of such series at the time of the acceleration resulting from such
Event of Default. However, the Company will remain liable in respect of such
payments (Article Thirteen).
Notwithstanding the description set forth under "Subordination of Senior
Subordinated Securities, Subordinated Securities and Guarantees" above, in the
event that the Company deposits money or U.S. Government Obligations in
compliance with such Senior Subordinated Indenture or the Indenture in order to
defease all or certain of its obligations with respect to any Senior
Subordinated Securities or Subordinated Securities, the moneys or U.S.
Government Obligations so deposited will not be subject to the subordination
provisions of such Indenture and the indebtedness evidenced by such Securities
will not be subordinated in right of payment to the holders of Senior
Indebtedness to the extent of the moneys or U.S. Government Obligations so
deposited.
NOTICES
Except as otherwise provided in the Indenture, notices to holders of Bearer
Debt Securities will be given by publication at least twice in a daily
newspaper in the City of New York and London or other capital city in Western
Europe and in such other city or cities as may be specified in such Securities.
Notices to holders of Registered Debt Securities will be given by mail to the
addresses of such holders as they appear in the Security Register.
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York (Section 1.12).
REGARDING THE TRUSTEE
The Indentures contain certain limitations on the right of the Trustee,
should it become a creditor of the Issuer, to obtain payment of claims in
certain cases, or to realize for its own account on certain property received
in respect of any such claim as security or otherwise (Section 6.13). The
Trustee will be permitted to engage in certain other transactions; however, if
it acquires any conflicting interest and there in a default under the Debt
Securities, it must eliminate such conflict or resign (Section 6.8).
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DESCRIPTION OF PREFERRED STOCK
The following is a description of certain general terms and provisions of
the Preferred Stock. The particular terms of any series of Preferred Stock
will be described in the applicable Prospectus Supplement. If so indicated in
a Prospectus Supplement, the terms of any such series may differ from the
terms set forth below. Certain provisions applicable to the Preferred Stock
are set forth below in "Description of Common Stock."
The summary of terms of the Company's preferred stock (including the
Preferred Stock) contained in this Prospectus does not purport to be complete
and is subject to, and qualified in its entirety by, the provisions of the
Company's Certificate of Incorporation and the certificate of designations
relating to each series of the Preferred Stock (the "Certificate of
Designations"), which will be filed as an exhibit to or incorporated by
reference in the Registration Statement of which this Prospectus is a part at
or prior to the time of issuance of such series of the Preferred Stock.
The Company's Certificate of Incorporation authorizes the issuance of
20,000,000 shares of preferred stock, par value of $1.00 per share. In the
Cyprus/Amax Merger 4,666,653 shares of Series A Convertible Preferred Stock
were issued and are currently outstanding, and the Company has reserved for
issuance 500,000 shares of its Series A Junior Participating Preferred Stock
issuable pursuant to the Rights Plan. A description of the Series A
Convertible Preferred Stock and the Series A Junior Participating Preferred
Stock has been incorporated by reference herein. The Company's preferred stock
may be issued from time to time in one or more series, without stockholder
approval. Subject to limitations prescribed by law, the Board of Directors is
authorized to determine the voting powers (if any), designation, preferences
and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, for each series of
preferred stock that may be issued, and to fix the number of shares of each
such series. Thus, the Board of Directors, without stockholder approval, could
authorize the issuance of preferred stock with voting, conversion and other
rights that could adversely affect the voting power and other rights of
holders of Common Stock or other series of preferred stock or that could have
the effect of delaying, deferring or preventing a change in control of the
Company. See "Description of Common Stock" herein.
The Preferred Stock shall have the dividend, liquidation, redemption, voting
and other rights set forth below unless otherwise provided in a Prospectus
Supplement relating to a particular series of the Preferred Stock. The
applicable Prospectus Supplement will describe the following terms of the
series of Preferred Stock in respect of which this Prospectus is being
delivered: (1) the designation and stated value per share of such Preferred
Stock and the number of shares offered; (2) the amount of liquidation
preference per share; (3) the initial public offering price at which such
Preferred Stock will be issued; (4) the dividend rate (or method of
calculation), the dates on which dividends shall be payable and the dates from
which dividends shall commence to cumulate, if any; (5) any redemption or
sinking fund provisions; (6) any conversion or exchange rights; (7) whether
the Company has elected to offer Depositary Shares as described below under
"Description of Depositary Shares"; and (8) any additional voting, dividend,
liquidation, redemption, sinking fund and other rights, preferences,
privileges, limitations and restrictions.
GENERAL
The Preferred Stock offered hereby will be issued in one or more series. The
holders of Preferred Stock will have no preemptive rights. Preferred Stock,
upon issuance against full payment of the purchase price therefor, will be
fully paid and nonassessable. Neither the par value nor the liquidation
preference is indicative of the price at which the Preferred Stock will
actually trade on or after the date of issuance. The applicable Prospectus
Supplement will contain a description of certain United States Federal income
tax consequences relating to the purchase and ownership of the series of
Preferred Stock offered by such Prospectus Supplement.
As described under "Description of Depositary Shares," the Company may, at
its option, elect to offer depositary shares ("Depositary Shares") evidenced
by depositary receipts ("Depositary Receipts"), each representing a fractional
interest (to be specified in the Prospectus Supplement relating to the
particular series
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of the Preferred Stock) in a share of the particular series of the Preferred
Stock issued and deposited with a Depositary (as defined below).
RANK
The Preferred Stock shall, with respect to dividend rights and rights on
liquidation, winding up and dissolution of the Company, rank prior to the
Company's Common Stock and to all other classes and series of equity securities
of the Company now or hereafter authorized, issued or outstanding (the Common
Stock and such other classes and series of equity securities collectively may
be referred to herein as the "Junior Stock"), other than any classes or series
of equity securities of the Company ranking on a parity with (the "Parity
Stock") or senior to (the "Senior Stock") the Preferred Stock as to dividend
rights and rights upon liquidation, winding up or dissolution of the Company.
The Preferred Stock shall be junior to all outstanding debt of the Company. The
Preferred Stock shall be subject to creation of Senior Stock, Parity Stock and
Junior Stock to the extent not expressly prohibited by the Company's
Certificate of Incorporation.
DIVIDENDS
Holders of shares of Preferred Stock shall be entitled to receive, when, as
and if declared by the Board of Directors out of funds of the Company legally
available for payment, cash dividends, payable at such dates and at such rates
per share per annum as set forth in the applicable Prospectus Supplement. Such
rate may be fixed or variable or both. Each declared dividend shall be payable
to holders of record as they appear at the close of business on the stock books
of the Company (or, if applicable, on the records of the Depositary (as
hereinafter defined) referred to below under "Description of Depositary
Shares") on such record dates, not more than 60 calendar days preceding the
payment dates therefor, as are determined by the Board of Directors (each of
such dates, a "Record Date").
Such dividends may be cumulative or noncumulative, as provided in the
Prospectus Supplement. If dividends on a series of Preferred Stock are
noncumulative and if the Board of Directors fails to declare a dividend in
respect of a dividend period with respect to such series, then holders of such
Preferred Stock will have no right to receive a dividend in respect of such
dividend period, and the Company will have no obligation to pay the dividend
for such period, whether or not dividends are declared payable on any future
Dividend Payment Dates. Dividends on the shares of each series of Preferred
Stock for which dividends are cumulative will accrue from the date on which the
Company initially issues shares of such series.
No full dividends shall be declared or paid or set apart for payment on
preferred stock of the Company of any series ranking, as to dividends, on a
parity with or junior to the series of Preferred Stock offered by the
Prospectus Supplement attached hereto for any period unless full dividends for
the immediately preceding dividend period on such Preferred Stock (including
any accumulation in respect of unpaid dividends for prior dividend periods, if
dividends on such Preferred Stock are cumulative) have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof is set apart for such payment. When dividends are not so
paid in full (or a sum sufficient for such full payment is not so set apart)
upon such Preferred Stock and any other preferred stock of the Company ranking
on a parity as to dividends with the Preferred Stock, dividends upon shares of
such Preferred Stock and dividends on such other preferred stock shall be
declared pro rata so that the amount of dividends declared per share on such
Preferred Stock and such other preferred stock shall in all cases bear to each
other the same ratio that accrued dividends for the then-current dividend
period per share on the shares of such Preferred Stock (including any
accumulation in respect of unpaid dividends for prior dividend periods, if
dividends on such Preferred Stock are cumulative) and accrued dividends,
including required or permitted accumulations, if any, on shares of such other
preferred stock, bear to each other. Unless full dividends on the series of
Preferred Stock offered by the Prospectus Supplement attached hereto have been
declared and paid or set apart for payment for the immediately preceding
dividend period (including any accumulation in respect of unpaid dividends for
prior dividend periods, if dividends on such Preferred Stock are cumulative)
(a) no cash dividend or distribution (other than in shares of Junior Stock) may
be declared, set aside or paid on the Junior Stock, (b) the Company
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may not repurchase, redeem or otherwise acquire any shares of its Junior Stock
(except by conversion into or exchange for Junior Stock) and (c) the Company
may not, directly or indirectly, repurchase, redeem or otherwise acquire any
shares of Preferred Stock or Parity Stock otherwise than pursuant to certain
pro rata offers to purchase or a concurrent redemption of all, or a pro rata
portion, of the outstanding shares of such Preferred Stock and Parity Stock
(except by conversion into or exchange for Junior Stock). The Company does not
currently have outstanding any Parity Stock.
CONVERTIBILITY
The terms, if any, on which shares of Preferred Stock of any series may be
exchanged for or converted (mandatorily or otherwise) into shares of Common
Stock of the Company or another corporation or another series of Preferred
Stock or other securities of the Company or another corporation will be set
forth in the Prospectus Supplement relating thereto. See "Description of Common
Stock."
REDEMPTION
The terms, if any, on which shares of Preferred Stock of any series may be
redeemed will be set forth in the related Prospectus Supplement.
LIQUIDATION
Unless otherwise specified in the applicable Prospectus Supplement, in the
event of a voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Company, the holders of a series of Preferred Stock will be
entitled, subject to the rights of creditors, but before any distribution or
payment to the holders of Common Stock or any other security ranking junior to
the Preferred Stock on liquidation, dissolution or winding up of the Company,
to receive an amount per share as set forth in the related Prospectus
Supplement plus accrued and unpaid dividends for the then-current dividend
period (including any accumulation in respect of unpaid dividends for prior
dividend periods, if dividends on such series of Preferred Stock are
cumulative). If the amounts available for distribution with respect to the
Preferred Stock and all other outstanding stock of the Company ranking on a
parity with the Preferred Stock upon liquidation are not sufficient to satisfy
the full liquidation rights of all the outstanding Preferred Stock and stock
ranking on a parity therewith, then the holders of each series of such stock
will share ratably in any such distribution of assets in proportion to the full
respective preferential amount (which in the case of preferred stock may
include accumulated dividends) to which they are entitled. After payment of the
full amount of the liquidation preference, the holders of shares of Preferred
Stock will not be entitled to any further participation in any distribution of
assets by the Company.
VOTING
The Preferred Stock of a series will not be entitled to vote, except as
provided below or in the applicable Prospectus Supplement and as required by
applicable law. Unless otherwise specified in the related Prospectus
Supplement, at any time dividends in an amount equal to six quarterly dividend
payments on the Preferred Stock shall have accrued and be unpaid, holders of
the Preferred Stock shall have the right to a separate class vote (together
with the holders of shares of any Parity Stock upon which like voting rights
have been conferred and are exercisable, "Voting Parity Stock") to elect two
members of the Board of Directors at the next annual meeting of stockholders
and thereafter until dividends on the Preferred Stock have been paid in full
for four consecutive dividend periods, including the last preceding dividend
period. Additionally, without the affirmative vote of the holders of two-thirds
of the shares of Preferred Stock then outstanding (voting separately as a class
together with any Voting Parity Stock), the Company may not, either directly or
indirectly or through merger or consolidation with any other corporation, (i)
approve the authorization, creation or issuance, or an increase in the
authorized or issued amount, of any class or series of stock ranking prior to
the shares of Preferred Stock in rights and preferences or (ii) amend, alter or
repeal its Certificate of Incorporation or the Certificate of Designations so
as to materially and adversely change the specific terms of
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the Preferred Stock. An amendment which increases the number of authorized
shares of or authorizes the creation or issuance of other classes or series of
preferred stock ranking junior to or on a parity with the Preferred Stock with
respect to the payment of dividends or distribution of assets upon liquidation,
dissolution or winding up, or substitutes the surviving entity in a merger,
consolidation, reorganization or other business combination for the Company,
shall not be considered to be such an adverse change.
As more fully described under "Description of Depositary Shares" below, if
the Company elects to issue Depositary Shares, each representing a fraction of
a share of a series of the Preferred Stock, each such Depositary Share will, in
effect, be entitled to such fraction of a vote per Depositary Share.
NO OTHER RIGHTS
The shares of a series of Preferred Stock will not have any preferences,
voting powers or relative, participating, optional or other special rights
except as set forth above or in the related Prospectus Supplement, the
Certificate of Incorporation and in the certificate of designations or as
otherwise required by law.
TRANSFER AGENT AND REGISTRAR
The transfer agent for each series of Preferred Stock will be described in
the related Prospectus Supplement.
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DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of certain
provisions of the Deposit Agreement (as defined below) and of the Depositary
Shares and Depositary Receipts does not purport to be complete and is subject
to and qualified in its entirety by reference to the forms of Deposit Agreement
and Depositary Receipts relating to each series of the Preferred Stock which
have been or will be filed with the Commission at or prior to the time of the
offering of such series of the Preferred Stock.
GENERAL
The Company may, at its option, elect to offer fractional interests in shares
of Preferred Stock, rather than shares of Preferred Stock. In the event such
option is exercised, the Company will provide for the issuance by a Depositary
to the public of receipts for Depositary Shares, each of which will represent a
fractional interest (to be set forth in the Prospectus Supplement relating to a
particular series of the Preferred Stock which will be filed with the
Commission at or prior to the time of the offering of such series of the
Preferred Stock as described below).
The shares of any series of the Preferred Stock underlying the Depositary
Shares will be deposited under a separate Deposit Agreement (the "Deposit
Agreement") between the Company and a bank or trust company selected by the
Company having its principal office in the United States and having a combined
capital and surplus of at least $50,000,000 (the "Depositary"). The Prospectus
Supplement relating to a series of Depositary Shares will set forth the name
and address of the Depositary. Subject to the terms of the Deposit Agreement,
each owner of a Depositary Share will be entitled, in proportion to the
applicable fractional interest in a share of Preferred Stock underlying such
Depositary Shares, to all the rights and preferences of the Preferred Stock
underlying such Depositary Share (including dividend, voting, redemption,
conversion and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the Deposit Agreement.
Pending the preparation of definitive engraved Depositary Receipts, the
Depositary may, upon the written order of the Company, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary Receipts but
not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts will
be exchangeable for definitive Depositary Receipts at the Company's expense.
Upon surrender of Depositary Receipts at the office of the Depositary and
upon payment of the charges provided in the Deposit Agreement and subject to
the terms thereof, a holder of Depositary Shares is entitled to have the
Depositary deliver to such holder the whole shares of Preferred Stock
underlying the Depositary Shares evidenced by the surrendered Depositary
Receipts.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash distributions
received in respect of the Preferred Stock to the record holders of Depositary
Shares relating to such Preferred Stock in proportion to the numbers of such
Depositary Shares owned by such holders on the relevant record date. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any holder of Depositary Shares a fraction of one cent,
and any balance not so distributed shall be added to and treated as part of the
next sum received by the Depositary for distribution to record holders of
Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may, with the approval of
the Company, sell such property and distribute the net proceeds from such sale
to such holders.
23
<PAGE>
The Deposit Agreement will also contain provisions relating to the manner in
which any subscription or similar rights offered by the Company to holders of
the Preferred Stock shall be made available to holders of Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Stock underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the
proceeds received by the Depositary resulting from the redemption, in whole or
in part, of such series of the Preferred Stock held by the Depositary. The
Depositary shall mail notice of redemption not less than 30 and not more than
60 days prior to the date fixed for redemption to the record holders of the
Depositary Shares to be so redeemed at their respective addresses appearing in
the Depositary's books. The redemption price per Depositary Share will be
equal to the applicable fraction of the redemption price per share payable
with respect to such series of the Preferred Stock. Whenever the Company
redeems shares of Preferred Stock held by the Depositary, the Depositary will
redeem as of the same redemption date the number of Depositary Shares relating
to shares of Preferred Stock so redeemed. If less than all of the Depositary
Shares are to be redeemed, the Depositary Shares to be redeemed will be
selected by lot or pro rata as may be determined by the Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
moneys payable upon such redemption and any money or other property to which
the holders of such Depositary Shares were entitled upon such redemption upon
surrender to the Depositary of the Depositary Receipts evidencing such
Depositary Shares.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Depositary will mail the information contained
in such notice of meeting to the record holders of the Depositary Shares
relating to such Preferred Stock. Each record holder of such Depositary Shares
on the record date (which will be the same date as the record date for the
Preferred Stock) will be entitled to instruct the Depositary as to the
exercise of the voting rights pertaining to the number of shares of Preferred
Stock underlying such holder's Depositary Shares. The Depositary will
endeavor, insofar as practicable, to vote the number of shares of Preferred
Stock underlying such Depositary Shares in accordance with such instructions,
and the Company will agree to take all action which may be deemed necessary by
the Depositary in order to enable the Depositary to do so. The Depositary will
abstain from voting shares of Preferred Stock to the extent it does not
receive specific instructions from the holders of Depositary Shares relating
to such Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary. However, any amendment which
materially and adversely alters the rights of the existing holders of
Depositary Shares will not be effective unless such amendment has been
approved by the record holders of at least a majority of the Depositary Shares
then outstanding. A Deposit Agreement may be terminated by the Company or the
Depositary only if (i) all outstanding Depositary Shares relating thereto have
been redeemed or (ii) there has been a final distribution in respect of the
Preferred Stock of the relevant series in connection with any liquidation,
dissolution or winding up of the Company and such distribution has been
distributed to the holders of the related Depositary Shares.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay charges of the Depositary in connection
24
<PAGE>
with the initial deposit of the Preferred Stock and any redemption of the
Preferred Stock. Holders of Depositary Shares will pay other transfer and other
taxes and governmental charges and such other charges as are expressly provided
in the Deposit Agreement to be for their accounts.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Shares all reports
and communications from the Company which are delivered to the Depositary and
which the Company is required to furnish to the holders of the Preferred Stock.
Neither the Depositary nor the Company will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and the
Depositary under the Deposit Agreement will be limited to performance in good
faith of their duties thereunder and they will not be obligated to prosecute or
defend any legal proceeding in respect of any Depositary Shares or Preferred
Stock unless satisfactory indemnity is furnished. They may rely upon written
advice of counsel or accountants, or information provided by persons presenting
Preferred Stock for deposit, holders of Depositary Shares or other persons
believed to be competent and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Company notice of
its election to do so, and the Company may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal and must be a bank or trust company having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000.
25
<PAGE>
DESCRIPTION OF COMMON STOCK
The Company's Certificate of Incorporation authorizes the issuance of
150,000,000 shares of common stock, without par value ("Common Stock"). A
description of the Company's Preferred Share Purchase Rights, which are
attached to and trade with the Common Stock, is incorporated by reference
herein.
The holders of Common Stock are entitled to receive dividends when and as
declared by the Board of Directors of the Company out of funds legally
available therefor, provided that if any shares of preferred stock are at the
time outstanding, the payment of dividends on Common Stock or other
distributions (including purchases of Common Stock) may be subject to the
declaration and payment of full cumulative dividends, and the absence of
arrearages in any mandatory sinking fund, on outstanding shares of preferred
stock.
The holders of Common Stock are entitled to one vote for each share of all
matters voted on by stockholders, including elections of directors. The
holders of Common Stock do not have any conversion, redemption or preemptive
rights. In the event of the dissolution, liquidation or winding up of the
Company, holders of Common Stock are entitled to share ratably in any assets
remaining after the satisfaction in full of the prior rights of creditors,
including holders of the Company's indebtedness, and the aggregate liquidation
preference of any preferred stock then outstanding.
All outstanding shares of Common Stock are, and the shares offered hereby,
upon issuance, will be, fully paid and non-assessable.
Under the Certificate of Incorporation and By-Laws of the Company, the Board
of Directors is classified into three classes of members with staggered terms.
Action can be taken by stockholders only at an annual or special meeting,
action by written consent by stockholders being prohibited. No business may be
proposed by a stockholder at the annual meeting of stockholders without giving
written notice to the Company at least 90 days prior to the anniversary date
of the previous annual meeting. No nominations for director positions may be
proposed by a stockholder at any annual or special meeting of stockholders
without giving written notice to the Company at least 90 days before the
anniversary date of the previous annual meeting or within 10 days after notice
of a special meeting is mailed to Cyprus. A special meeting can be called by
the Board of Directors, the Chairman of the Board, the President or holders of
at least 50 percent of the shares entitled to vote at such meeting. Directors
can be removed only with cause by the vote of holders of at least 75 percent
of outstanding shares of Common Stock.
Certain "business combinations" (as defined) involving "interested
stockholders" (defined generally to be holders of 10 percent or more of Common
Stock) require approval by vote of holders of at least 75 percent of shares
eligible to vote if not previously approved by a majority of the disinterested
members of the Board of Directors unless certain minimum price criteria and
procedural requirements are satisfied. In a business combination involving
cash or other consideration being paid to the Company's stockholders, the
consideration would be required to be either cash or the same type of
consideration used by the interested stockholder in acquiring the largest
portion of its shares prior to the first public announcement of the terms of
the proposed business combination. In the case of payments to holders of
Common Stock, the per share fair market value of such payments would generally
have to be at least equal in value to the higher of (i) the highest per share
price paid by the interested stockholder in acquiring any share of Common
Stock during the two years prior to such announcement date (although not an
interested stockholder at the time of any such acquisitions) or in the
transaction in which it became an interested stockholder (whichever is higher)
or (ii) the fair market value per share of Common Stock on such announcement
date or on the date on which the interested stockholder became an interested
stockholder, whichever is higher, in either case appropriately adjusted for
any stock dividend, stock split or combination of shares. Unless a business
combination is approved by a majority of disinterested directors, it would be
subject to the 75 percent stockholder vote requirement, even if it satisfied
the minimum price criteria, if the interested stockholder acquired any
additional shares of Common Stock, directly from the Company or otherwise, in
any transaction subsequent to the transaction pursuant to which it became an
interested stockholder. The Certificate of Incorporation also contains an
"anti-greenmail" provision
26
<PAGE>
prohibiting certain purchases of shares by the Company from "interested
stockholders" without a majority vote of disinterested stockholders. These
provisions could limit stockholders' participation in certain types of
business combinations or other transactions that might be proposed in the
future whether or not such transactions were favored by a majority of
stockholders and could enhance the ability of officers and directors to retain
their positions. Because no more than one-third of the directors are to be
elected at each annual meeting, action would be required at two annual
meetings to change a majority of the Board members, even by holders of a
majority of shares who believe a change may be beneficial.
The transfer agent for the Common Stock is Society National Bank, One Park
Central, 1515 Arapahoe Street, Suite 1505, Denver, Colorado 80202.
27
<PAGE>
DESCRIPTION OF WARRANTS
GENERAL
The Company may issue Warrants, including Warrants to purchase Debt
Securities ("Debt Warrants"), as well as other types of Warrants. Warrants may
be issued independently or together with any Debt Securities and may be
attached to or separate from such Debt Securities. Each series of Warrants will
be issued under a separate warrant agreement (each a "Warrant Agreement") to be
entered into between the Company and a warrant agent ("Warrant Agent"). The
Warrant Agent will act solely as an agent of the Company in connection with the
Warrants of such series and will not assume any obligation or relationship of
agency or trust for or with any holders or beneficial owners of Warrants. The
following sets forth certain general terms and provisions of the Warrants
offered hereby. Further terms of the Warrants and the applicable Warrant
Agreement are set forth in the applicable Prospectus Supplement or Pricing
Supplement.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the following terms of the
Debt Warrants in respect of which this Prospectus is being delivered: (1) the
title of such Debt Warrants; (2) the aggregate number of such Debt Warrants;
(3) the price or prices at which such Debt Warrants will be issued; (4) the
currency or currencies, including composite currencies, in which the price of
such Debt Warrants may be payable; (5) the designation, aggregate principal
amount and terms of the Debt Securities purchasable upon exercise of such Debt
Warrants; (6) if applicable, the designation and terms of the Debt Securities
with which such Debt Warrants are issued and the number of such Debt Warrants
issued with each such Debt Security; (7) the currency or currencies, including
composite currencies, in which the principal of or any premium or interest on
the Debt Securities purchasable upon exercise of such Debt Warrant will be
payable; (8) if applicable, the date on and after which such Debt Warrants and
the related Debt Securities will be separately transferable; (9) the price at
which and the currency or currencies, including composite currencies, in which
the Debt Securities purchasable upon exercise of such Debt Warrants may be
purchased; (10) the date on which the right to exercise such Debt Warrants
shall commence and the date on which such right shall expire; (11) if
applicable, the minimum or maximum amount of such Debt Warrants which may be
exercised at any one time; (12) information with respect to book-entry
procedures, if any; (13) if applicable, a discussion of certain United States
Federal income tax considerations; and (14) any other terms of such Debt
Warrants, including terms, procedures and limitations relating to the exchange
and exercise of such Debt Warrants.
OTHER WARRANTS
The Company may issue other Warrants. The applicable Prospectus Supplement
will describe the following terms of any such other Warrants in respect of
which this Prospectus is being delivered: (1) the title of such Warrants; (2)
the securities (which may include Preferred Stock or Common Stock) for which
such Warrants are exercisable; (3) the price or prices at which such Warrants
will be issued; (4) the currency or currencies, including composite currencies,
in which the price of such Warrants may be payable; (5) if applicable, the
designation and terms of the Debt Securities or Preferred Stock with which such
Warrants are issued and the number of such Warrants issued with each such Debt
Security or share of Preferred Stock; (6) if applicable, the date on and after
which such Warrants and the related Debt Securities or Preferred Stock will be
separately transferable; (7) if applicable, a discussion of certain United
States Federal income tax considerations; and (8) any other terms of such
Warrants, including terms, procedures and limitations relating to the exchange
and exercise of such Warrants.
28
<PAGE>
PLAN OF DISTRIBUTION
The Company may offer Securities to or through underwriters, through agents
or directly to other purchasers. Such Underwriters or agents may include
Kidder, Peabody & Co. Incorporated ("Kidder, Peabody")
The distribution of Securities may be effected from time to time in one or
more transactions at a fixed price or prices, which may be changed, at market
prices prevailing at the time of sale, at prices related to such market prices
or at negotiated prices.
In connection with the sale of Securities, underwriters or agents may receive
compensation from the Company or from purchasers in the form of discounts,
concessions or commissions. Underwriters, agents and dealers participating in
the distribution of the Securities may be deemed to be underwriters within the
meaning of the Securities Act.
Pursuant to agreements which may be entered into between the Company and any
underwriters or agents named in the Prospectus Supplement, such underwriters or
agents may be entitled to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as agents for the Company to solicit
offers by certain institutional investors to purchase Debt Securities or
Preferred Stock from the Company pursuant to contracts providing for payment
and delivery on a future date. Institutions with which such contracts may be
made include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and others, but
shall in all cases be subject to the approval of the Company. The obligations
of the purchaser under any such contract will not be subject to any conditions
except (i) the investment in the Debt Securities or Preferred Stock by the
institution shall not at the time of delivery be prohibited by the laws of any
jurisdiction in the United States to which such institution is subject, and
(ii) if a portion of the Debt Securities or Preferred Stock is being sold to
underwriters, the Company shall have sold to such underwriters the Debt
Securities or Preferred Stock not sold for delayed delivery. Underwriters and
such other persons will not have any responsibility in respect of the validity
or performance of such contracts.
All Debt Securities, Preferred Stock and Warrants offered will be a new issue
of securities with no established trading market. Any underwriters to whom such
Debt Securities, Preferred Stock and Warrants are sold by the Company for
public offering and sale may make a market in such Debt Securities, Preferred
Stock and Warrants, but such underwriters will not be obligated to do so and
may discontinue any market making at any time without notice. No assurance can
be given as to the liquidity of or the trading markets for any Debt Securities,
Preferred Stock or Warrants.
The Company and Kidder, Peabody intend to enter into a Sales Agency Agreement
(the "Sales Agency Agreement"), a copy of the form of which is filed as an
exhibit to the Registration Statement and is incorporated by reference herein.
Subject to the terms and conditions of the Sales Agency Agreement, the Company
may issue and sell up to 4,000,000 shares of Common Stock from time to time
through Kidder, Peabody, as exclusive sales agent for the Company. Such sales,
if any, will be made by means of ordinary brokers' transactions on any national
securities exchange, including the New York Stock Exchange, on which such
shares of Common Stock are listed. Such sales will be effected during a series
of one or more pricing periods (each a "Pricing Period"), each consisting of
five consecutive calendar days in duration. During any Pricing Period, no more
than 105,000 shares ("Average Market Shares") will be sold subject to the
calculation of Net Proceeds as defined below. The aggregate number of shares of
Common Stock sold in all Pricing Periods will not exceed 4,000,000. In
addition, for each Pricing Period, an Average Market Price (as hereinafter
defined) will be computed. With respect to any Pricing Period, "Average Market
Price" shall equal the average of the arithmetic mean of the daily high and low
sale prices of the Common Stock reported on the New York Stock Exchange for
each trading day of such Pricing Period.
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<PAGE>
The net proceeds to the Company with respect to sales of Average Market Price
Shares will equal 97.5% percent of the Average Market Price for each share of
Common Stock sold during the Pricing Period (subject to adjustment in certain
circumstances), plus Excess Proceeds (as defined below), if any. The
compensation to Kidder, Peabody for such sales in any Pricing Period will equal
the difference between the actual sale prices at which such sales are effected
and the net proceeds to the Company for such sales, but in no case will exceed
ten percent of such actual sales prices. To the extent that such actual sales
prices are less than the Average Market Price, the compensation to Kidder,
Peabody would be correspondingly reduced; to the extent that such actual sales
prices are greater than the Average Market Price, the compensation to Kidder,
Peabody will be correspondingly increased (but in no event will exceed ten
percent of the actual sales price). In the event that the average actual sales
price in any Pricing Periods equals 97.5% percent of Average Market Price (or
less) for such Pricing Period, all of the proceeds from such sales would be for
the account of the Company and no compensation would be payable to Kidder,
Peabody. To the extent that Kidder, Peabody's compensation under the foregoing
formula would otherwise exceed ten percent of the actual sales prices in any
Pricing Period, the excess over ten percent will constitute additional net
proceeds to the Company (the "Excess Proceeds").
Any shares of Common Stock sold by Kidder, Peabody during the Pricing Period
on behalf of the Company other than Average Market Price Shares ("Additional
Shares") will be at a fixed commission rate of $0.10 per share for the first
105,000 Additional Shares and $0.40 per share for any Additional Shares in
excess of 105,000. In no event will the compensation to Kidder, Peabody be in
excess of any applicable National Association of Securities Dealers, Inc.
requirements.
Settlements of sales of Additional Shares will occur on the fifth business
day following the date on which such sales are made. Settlements for sales of
Average Market Price Shares will occur on a weekly basis on each Monday (or the
next succeeding business day if such Monday is not a business day) following
the end of each Pricing Period. Purchases of Common Stock from Kidder, Peabody
for the Company will settle regular way on the national securities exchange
where such purchases were executed. Compensation to Kidder, Peabody with
respect to sales of Average Market Price Shares will be paid out of the
proceeds of such settlements. There is no arrangement for funds to be received
in an escrow, trust or similar arrangement.
At the end of each Pricing Period, the Company will file a Prospectus
Supplement under Rule 424(b)(3) promulgated under the Act, which Prospectus
Supplement will set forth the number of such shares of Common Stock sold
through Kidder, Peabody as sales agent (identifying separately the number of
Average Market Shares and any Additional Shares), the high and low prices at
which Average Market Shares were sold during such Pricing Period, the net
proceeds to the Company and the compensation payable by the Company to Kidder,
Peabody with respect to such sales pursuant to the formula set forth above.
Unless otherwise indicated in a Prospectus Supplement, Kidder, Peabody will act
on a best efforts basis.
In connection with the sale of the Common Stock on behalf of the Company,
Kidder, Peabody may be deemed to be an "underwriter" within the meaning of the
Act, and the compensation of Kidder, Peabody may be deemed to be underwriting
commissions or discounts. The Company has agreed to provide indemnification and
contribution to Kidder, Peabody against certain civil liabilities, including
liabilities under the Securities Act of 1933, as amended. Kidder, Peabody may
engage in transactions with, or perform services for, the Company in the
ordinary course of business.
The offering of Common Stock pursuant to the Sales Agency Agreement will
terminate upon the earlier (i) the sale of all 4,000,000 shares of Common Stock
subject thereto and (ii) termination of the Sales Agency Agreement. The Sales
Agency Agreement may be terminated by the Company in its sole discretion on the
date occurring 60 days after the date of the Sales Agency Agreement and every
60 days thereafter. The Company may also terminate the Sales Agency Agreement
at any time if the Company chooses to effect any offering of equity securities
of equity-related securities other than pursuant to the Sales Agency Agreement.
30
<PAGE>
Certain of the underwriters or agents and their associates may be customers
of, engage in transactions with and perform services for the Company in the
ordinary course of business.
The specific terms and manner of sale of the Securities in respect of which
this Prospectus is being delivered are set forth or summarized in the
Prospectus Supplement.
VALIDITY OF SECURITIES
The validity of the Securities offered will be passed upon for the Company by
Davis, Graham & Stubbs, Denver, Colorado. Certain legal matters will be passed
upon for Kidder, Peabody by Latham & Watkins, Washington, D.C.
EXPERTS
The consolidated financial statements and the related financial statement
schedules as of December 31, 1993 and December 31, 1992 and for each of the
three years in the period ended December 31, 1993, incorporated by reference in
this Prospectus from the Company's Annual Report on Form 10-K for the year
ended December 31, 1993, have been audited by Price Waterhouse, independent
accountants, as stated in their reports which are incorporated by reference
herein, and have been so included and incorporated in reliance upon the reports
of such firm given upon their authority as experts in accounting and auditing.
The combined financial statements and the related financial statement
schedules of the Amax Business to be Merged as of December 31, 1992 and
December 31, 1991 and for each of the three years in the period ended December
31, 1992, incorporated by reference in this Prospectus from the Company's
Report on Form 8-K dated September 24, 1993 have been audited by Coopers &
Lybrand, independent accountants, as stated in their report which is
incorporated by reference herein, and have been so included and incorporated in
reliance upon the report of such firm given upon their authority as experts in
accounting and auditing.
31
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NO DEALER, SALESMAN, OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS SUPPLEMENT OR THE ACCOMPANYING PROSPECTUS AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY OR THE UNDERWRITERS. NEITHER THIS
PROSPECTUS SUPPLEMENT NOR THE ACCOMPANYING PROSPECTUS CONSTITUTES AN OFFER TO
SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY
IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN
SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT OR THE
ACCOMPANYING PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION HEREIN IS CORRECT AS
OF ANY TIME SUBSEQUENT TO THE DATE HEREOF OR THAT THERE HAS BEEN NO CHANGE IN
THE AFFAIRS OF THE COMPANY SINCE SUCH DATE.
----------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information..................................................... 2
Incorporation of Certain Documents by Reference........................... 2
The Company............................................................... 4
Use of Proceeds........................................................... 4
Ratios of Earnings to Fixed Charges and Earnings to Fixed Charges and
Preferred Stock Dividends of the Company................................ 4
Price Range of Common Stock and Dividends................................. 5
Description of Debt Securities and
Guarantees.............................................................. 6
Description of Preferred Stock............................................ 20
Description of Depositary Shares.......................................... 24
Description of Common Stock............................................... 27
Description of Warrants................................................... 28
Plan of Distribution...................................................... 29
Validity of Securities.................................................... 30
Experts................................................................... 30
</TABLE>
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following sets forth expenses, other than underwriting fees and
commissions, expected to be borne by the Registrants, in connection with the
distribution of the securities being registered:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee.................. $172,414
Blue Sky fees and expenses........................................... 20,000
Rating agency fees................................................... 150,000
Legal fees and expenses.............................................. 75,000
Printing............................................................. 75,000
Accounting fees and expenses......................................... 20,000
Miscellaneous........................................................ 100,000
--------
TOTAL............................................................ $612,414*
========
</TABLE>
All amounts listed above, except for the registration fee are estimates.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Bylaws of Cyprus Amax and of Cyprus Amax Finance ("Finance") provide that
Cyprus Amax and Finance shall, to the full extent permitted by the General
Corporation Law of the State of Delaware, as amended from time to time,
indemnify all of their respective directors and officers. Section 145 of the
Delaware General Corporation Law provides in part that a corporation shall have
the power to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding
(other than an action by or in the right of the corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interest
of the corporation, and with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. Similar indemnity is
authorized for such persons against expenses (including attorneys' fees)
actually and reasonably incurred in defense or settlement of any threatened,
pending or completed action or suit by or in the right of the corporation, if
such person acted in good faith an in a manner he reasonably believed to be in
or not opposed to the best interest of the corporation, and provided further
that (unless a court of competent jurisdiction otherwise provides) such person
shall not have been adjudged liable to the corporation. Any such
indemnification may be made only as authorized in each specific case upon a
determination by the stockholders or disinterested directors that
indemnification is proper because the indemnitee has met the applicable
standard of conduct.
Additionally, each Certificate of Incorporation eliminates in certain
circumstances the monetary liability of directors of Cyprus Amax and Finance
for a breach of their fiduciary duty as directors. This provision does not
eliminate the liability of a director (i) for a breach of the director's duty
of loyalty to Cyprus Amax, Finance or their respective stockholders; (ii) for
acts or omissions by the director not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) for liability
arising under Section 174 of the Delaware General Corporation Law (relating to
the declaration of dividends and purchase of redemption of shares in violation
of the Delaware General Corporation Law); or (iv) for any transaction from
which the director derived an improper personal benefit.
A policy of directors' and officers' liability insurance is maintained by
Cyprus Amax, which policy insures directors and officers for losses as a result
of claims based upon their acts or omissions as directors
II-1
<PAGE>
and officers of Cyprus Amax, including liabilities arising under the Securities
Act of 1933, and also reimburses Cyprus Amax for payments made pursuant to the
indemnity provisions under the Delaware General Corporation Law.
ITEM 16. EXHIBITS
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement+
1.2 Form of Sales Agency Agreement+
3.1 Certificate of Incorporation of Finance+
3.2 Bylaws of Finance+
4.1 Form of Indenture for Senior Debt Securities+
4.2 Form of Senior Debt Security (included in Exhibit 4.1)+
4.3 Form of Indenture for Senior Subordinated Debt Securities+
4.4 Form of Senior Subordinated Debt Security (included in Exhibit 4.3)+
4.5 Form of Indenture for Subordinated Debt Securities+
4.6 Form of Subordinated Debt Securities (included in Exhibit 4.5)+
4.7 Form of Indenture for Guaranteed Debt Securities*
4.8 Form of Guaranteed Debt Securities (included in Exhibit 4.7)*
4.9 Form of Certificate of Designations of Preferred Stock (incorporated by
reference to Exhibit 4.4 to Amendment No. 2 to Registration Statement on
Form S-3 (Registration No. 33-55794), dated June 27, 1993)
4.10 Form of Deposit Agreement, including form of Depositary Receipt for
Depositary Shares (incorporated by reference to Exhibit 4.5 to Amendment
No. 2 to Registration Statement on Form
S-3 (Registration No. 33-55794), dated June 27, 1993)
4.11 Specimen Stock Certificate with respect to Preferred Stock (incorporated
by reference to Exhibit 4.6 to Amendment No. 2 to Registration Statement
on Form S-3 (Registration No. 33-55794), dated June 27, 1993)
4.12 Specimen Stock Certificate with respect to Common Stock (incorporated by
reference to Exhibit 4(c) to Registration Statement on Form S-1
(Registration No. 33-23802), dated July 14, 1988)
5.1 Opinion of Davis, Graham & Stubbs*
12.1 Statement re Computation of Ratios+
15.1 Letter of Price Waterhouse Re Unaudited Interim Financial Information
23.1 Consent of Price Waterhouse+
23.2 Consent of Coopers & Lybrand+
23.3 Consent of Davis, Graham & Stubbs--see Exhibit 5.1*
24.1 Powers of Attorney (included in signature pages)+
25.1 Statement of Eligibility of Trustee on Form T-1 with respect to Debt
Securities*
25.4 Statement of Eligibility of Trustee on Form T-1 with respect to
Guaranteed Debt Securities*
</TABLE>
- --------
+ Filed herewith
* To be filed by amendment
ITEM 17. UNDERTAKINGS
The Registrant hereby undertakes that, for the purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in this Registration Statement shall
be deemed to be a new Registration Statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-2
<PAGE>
The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement,
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, that are incorporated by reference in the
Registration Statement;
(b) That for purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as
part of a Registration Statement in reliance upon Rule 430A and
contained in the form of prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall
be deemed to be part of this Registration Statement as of the time it
was declared effective.
(c) That for the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new Registration Statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(d) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses is incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or 14c-3 under the Securities Exchange Act of 1934;
and, where the interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
II-3
<PAGE>
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the Subordinated Trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Trust Indenture Act.
II-4
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN DENVER, COLORADO ON THE TENTH DAY OF JUNE, 1994.
CYPRUS AMAX MINERALS COMPANY
/s/ Gerald J. Malys
By:__________________________________
GERALD J. MALYS SENIOR VICE
PRESIDENT AND CHIEF FINANCIAL
OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES AND
ON THE DATES INDICATED. EACH PERSON WHOSE SIGNATURE TO THIS REGISTRATION
STATEMENT APPEARS BELOW HEREBY APPOINTS EACH OF GERALD J. MALYS, PHILIP C. WOLF
AND KATHLEEN J. GORMLEY, AS HIS/HER ATTORNEY-IN-FACT TO SIGN ON HIS/HER BEHALF
INDIVIDUALLY AND IN THE CAPACITY STATED BELOW AND TO FILE ALL SUPPLEMENTS,
AMENDMENTS AND POST-EFFECTIVE AMENDMENTS TO THIS REGISTRATION STATEMENT, AND
ANY AND ALL INSTRUMENTS OR DOCUMENTS FILED AS A PART OF OR IN CONNECTION WITH
THIS REGISTRATION STATEMENT OR ANY AMENDMENT OR SUPPLEMENT THERETO, AND ANY
SUCH ATTORNEY-IN-FACT MAY MAKE SUCH CHANGES AND ADDITIONS TO THIS REGISTRATION
STATEMENT AS SUCH ATTORNEY-IN-FACT MAY DEEM NECESSARY OR APPROPRIATE.
SIGNATURES TITLE DATE
/s/ Milton H. Ward Co-Chairman, June 10, 1994
- ------------------------------------- President, and
MILTON H. WARD Chief Executive
Officer
/s/ Allen Born Co-Chairman June 10, 1994
- -------------------------------------
ALLEN BORN
/s/ Gerald J. Malys Senior Vice June 10, 1994
- ------------------------------------- President and Chief
GERALD J. MALYS Financial Officer
(Principal
Financial Officer)
/s/ John Taraba Vice President and June 10, 1994
- ------------------------------------- Controller
JOHN TARABA (Principal
Accounting Officer)
Director
- -------------------------------------
LINDA G. ALVARADO
II-5
<PAGE>
SIGNATURES TITLE DATE
/s/ George S. Ansell Director June 10, 1994
- -------------------------------------
GEORGE S. ANSELL
/s/ William C. Bousquette Director June 10, 1994
- -------------------------------------
WILLIAM C. BOUSQUETTE
/s/ Thomas V. Falkie Director June 10, 1994
- -------------------------------------
THOMAS V. FALKIE
/s/ Ann Maynard Gray Director June 10, 1994
- -------------------------------------
ANN MAYNARD GRAY
/s/ James C. Huntington, Jr. Director June 10, 1994
- -------------------------------------
JAMES C. HUNTINGTON, JR.
/s/ Michael A. Morphy Director June 10, 1994
- -------------------------------------
MICHAEL A. MORPHY
Director
- -------------------------------------
ROCKWELL A. SCHNABEL
/s/ Theodore M. Solso Director June 10, 1994
- -------------------------------------
THEODORE M. SOLSO
/s/ John Hoyt Stookey Director June 10, 1994
- -------------------------------------
JOHN HOYT STOOKEY
/s/ James A. Todd, Jr. Director June 10, 1994
- -------------------------------------
JAMES A. TODD, JR.
/s/ Billie B. Turner Director June 10, 1994
- -------------------------------------
BILLIE B. TURNER
II-6
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN DENVER, COLORADO ON THE TENTH DAY OF JUNE, 1994.
CYPRUS AMAX FINANCE CORPORATION
/s/ Gerald J. Malys
By___________________________________
GERALD J. MALYS
SENIOR VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES AND
ON THE DATES INDICATED. EACH PERSON WHOSE SIGNATURE TO THIS REGISTRATION
STATEMENT APPEARS BELOW HEREBY APPOINTS EACH OF GERALD J. MALYS, PHILIP C. WOLF
AND KATHLEEN J. GORMLEY, AS HIS/HER ATTORNEY-IN-FACT TO SIGN ON HIS/HER BEHALF
INDIVIDUALLY AND IN THE CAPACITY STATED BELOW AND TO FILE ALL SUPPLEMENTS,
AMENDMENTS AND POST-EFFECTIVE AMENDMENTS TO THIS REGISTRATION STATEMENT, AND
ANY AND ALL INSTRUMENTS OR DOCUMENTS FILED AS A PART OF OR IN CONNECTION WITH
THIS REGISTRATION STATEMENT OR ANY AMENDMENT OR SUPPLEMENT THERETO, AND ANY
SUCH ATTORNEY-IN-FACT MAY MAKE SUCH CHANGES AND ADDITIONS TO THIS REGISTRATION
STATEMENT AS SUCH ATTORNEY-IN-FACT MAY DEEM NECESSARY OR APPROPRIATE.
SIGNATURES TITLE DATE
/s/ Milton H. Ward Chairman, President, June 10, 1994
- ------------------------------------- and Chief Executive
MILTON H. WARD Officer
/s/ Gerald J. Malys Director, Senior June 10, 1994
- ------------------------------------- Vice President and
GERALD J. MALYS Chief Financial
Officer (Principal
Financial Officer)
/s/ Philip C. Wolf Director June 10, 1994
- -------------------------------------
PHILIP C. WOLF
/s/ John Taraba Vice President and June 10, 1994
- ------------------------------------- Controller
JOHN TARABA (Principal
Accounting Officer)
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
------- ----------- ------
<C> <S> <C>
1.1 Form of Underwriting Agreement
1.2 Form of Sales Agency Agreement
3.1 Certificate of Incorporation of Finance
3.2 Bylaws of Finance
4.1 Form of Indenture for Senior Debt Securities
4.2 Form of Senior Debt Security (included in Exhibit 4.1)
4.3 Form of Indenture for Senior Subordinated Debt Securities
4.4 Form of Senior Subordinated Debt Security (included in
Exhibit 4.3)
4.5 Form of Indenture for Subordinated Debt Securities
4.6 Form of Subordinated Debt Securities (included in Exhibit 4.5)
12.1 Statement re Computation of Ratios
15.1 Letter of Price Waterhouse Re Unaudited Interim Financial
Information
23.1 Consent of Price Waterhouse
23.2 Consent of Coopers & Lybrand
24.1 Powers of Attorney (included in signature pages)
</TABLE>
<PAGE>
EXHIBIT 1
UNDERWRITING AGREEMENT
----------------------
_______________, 199__
_________________________
_________________________
_________________________
_________________________
Gentlemen:
From time to time Cyprus Amax Minerals Company, a Delaware corporation
(the "Company") [and Cyprus Amax Finance Corporation, a Delaware corporation
("Finance")] propose[s] to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) the [principal amount] [number of shares] of [guaranteed debt
securities of Finance] [[Common Stock without par value] [preferred stock]
[warrants] [debt securities] [and guarantees] of the Company] (the "Securities")
specified in Schedule II to such Pricing Agreement with respect to such Pricing
Agreement, the "Firm Securities"). If specified in such Pricing Agreement, the
Company [and Finance] may grant to the Underwriters the right to purchase at
their election an additional [aggregate principal amount of Securities] [number
of shares] [number of warrants] specified in such Pricing Agreement as provided
in Section 3 hereof (the "Optional Securities"). The Firm Securities and the
Optional Securities, if any, which the Underwriters elect to purchase pursuant
to Section 3 hereof are herein collectively called the "Designated Securities."
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto [and
in or pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement].
1. Particular sales of Designated Securities may be made from time
to time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating
<PAGE>
____________, 199__
Page 2
thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company [or Finance] to sell any of the Securities or as an
obligation of any of the Underwriters to purchase any of the Securities. The
obligation of the Company [and Finance] to issue and sell any of the Securities
and the obligation of any of the Underwriters to purchase any of the Securities
shall be evidenced by the Pricing Agreement with respect to the Designated
Securities specified therein. Each Pricing Agreement shall specify the
[aggregate principal amount] [number of shares] [number of warrants] of Firm
Securities, the maximum number of Optional Securities, if any, the initial
public offering price of such Firm and Optional Securities or the manner of
determining such price, the purchase price to the Underwriters of such
Designated Securities, the names of the Underwriters of such Designated
Securities, the names of the Representatives of such Underwriters, the number of
such Designated Securities to be purchased by each Underwriter and the
commission, if any, payable to the Underwriters with respect thereto and shall
set forth the date, time and manner of delivery of such Firm and Optional
Securities, if any, and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in [the Indenture and] the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. Representations and Warranties of the Company. The Company
---------------------------------------------
represents and warrants to, and agrees with, each Underwriters that:
(a) A registration statement (No. 33-________), including a
prospectus, relating to the Securities has been filed with the Securities and
Exchange Commission ("Commission") and has become effective. Such registration
statement, as amended at the time of this Agreement, is hereinafter referred to
as the "Registration Statement," and the prospectus included in such
Registration Statement, as supplemented to reflect the terms of the Securities
and the terms of the offering hereof, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the
Securities Act of 1933
<PAGE>
____________, 199__
Page 3
(the "Act"), including all material incorporated by reference therein, is
hereinafter referred to as the "Prospectus."
Each form of prospectus, or prospectus and prospectus supplement, if
any, heretofore made available for use in offering the Securities is referred to
herein as a "preliminary prospectus." Any reference herein to the Registration
Statement, the Prospectus, any amendment or supplement thereto or any
preliminary prospectus shall be deemed to refer to and include the documents
incorporated by reference therein, and any reference herein to the terms
"amend," "amendment" or "supplement," or similar terms, with respect to the
Registration Statement or Prospectus shall be deemed to refer to and include the
filing after the execution hereof of any document with the Commission deemed to
be incorporated by reference therein.
(b) On the effective date of the registration statement relating
to the Securities, such registration statement conformed in all respects to the
requirements of the Act, the Trust Indenture Act of 1939 ("Trust Indenture Act")
and the rules and regulations of the Commission ("Rules and Regulations") and
did not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and on the date of the Pricing Agreement or date of
filing of the Prospectus as referred to above, the Registration Statement and
the Prospectus conformed or will conform in all respects to the requirements of
the Act, the Trust Indenture Act and the Rules and Regulations, and neither of
such documents included or will include any untrue statement of a material fact
or omitted or will omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, except that the
foregoing does not apply to statements in or omissions from any of such
documents based upon written information furnished to the Company by any
Underwriter through the Representative or Representatives, if any, of the
Underwriters as identified above specifically for use therein.
(c) The documents incorporated by reference in the
Registration Statement, the Prospectus, any amendment or supplement thereto,
when they became or become effective under the Act or were or are filed with
the Commission under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as the case may be, conformed or will conform in all material
respects with the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder.
(d) The consolidated financial statements of the Company,
together with the related notes and schedules, set forth or incorporated by
reference in the Registration Statement and Prospectus for the periods therein
specified were prepared in conformity with generally accepted accounting
principles consistently applied throughout the periods involved (except as
otherwise stated therein).
3. Purchase, Sale and Delivery of Securities. Upon the execution of
-----------------------------------------
the Pricing Agreement applicable to any Designated Securities and authorization
by the Representatives of the release of the Firm Securities, the several
Underwriters propose to offer the Firm Securities for sale upon the terms and
conditions set forth in the Prospectus as amended or supplemented.
The Company [and Finance] may specify in the Pricing Agreement
applicable to any Designated Securities that the Company [and Finance] thereby
grant[s] to the Underwriters the
<PAGE>
____________, 199__
Page 4
right (an "Over-allotment Option") to purchase at their election up to the
number of Optional Securities set forth in such Pricing Agreement, at the terms
set forth in the paragraph above, for the sole purpose of covering over-
allotments in the sale of the Firm Securities. Any such election to purchase
Optional Securities may be exercised by written notice from the Representatives
to the Company, given within a period specified in the Pricing Agreement,
setting forth the aggregate [number] [principal amount] of Optional Securities
to be purchased and the date on which such Optional Securities are to be
delivered, as determined by the Representatives but in no event earlier than the
Closing Date (as defined below) or, unless the Representatives and the Company
otherwise agree in writing, earlier than or later than the respective number of
business days after the date of such notice set forth in such Pricing Agreement.
The number of Optional Securities to be added to the number of Firm
Securities to be purchased by each Underwriter as set forth in Schedule I to the
Pricing Agreement applicable to such Designated Securities shall be, in each
case, the [number] [principal amount] of Optional Securities which the Company
[and Finance have] [has] been advised by the Representatives have been
attributed to such Underwriter, provided that, if the Company [and Finance have]
[has] not been so advised, the [number] [principal amount] of Optional
Securities to be so added shall be, in each case, that proportion of Optional
Securities which the [number] [principal amount] of Firm Securities to be
purchased by such Underwriter under such Pricing Agreement bears to the
aggregate [number] [principal amount] of Firm Securities [rounded as the
Representatives may determine to the nearest 100 shares]. The total [number]
[principal amount] of Designated Securities to be purchased by all the
Underwriters pursuant to such Pricing Agreement shall be the aggregate [number]
[principal amount] of Firm Securities set forth in Schedule I to such Pricing
Agreement plus the aggregate [number] [principal amount] of the Optional
Securities which the Underwriters elect to purchase.
The Designated Securities to be purchased by the Underwriters will be
delivered by [the Company] [Finance] to you for the accounts of the several
Underwriters at the office specified in Schedule I to the Pricing Agreement
against payment of the purchase price therefor by certified or official bank
check or checks in New York Clearing House (next day) funds payable to the order
of the Company at the office, on the date and at the times specified in such
Schedule I, or at such other time not later than eight full business days
thereafter as you and [the Company] [Finance] determine, such time being herein
referred to as the "Closing Date." Such Designated Securities
<PAGE>
____________, 199__
Page 5
will be prepared in definitive form and in such authorized denominations and
registered in such names as you may request upon at least two business days'
prior notice to [the Company] [Finance] and will be made available for checking
and packaging at the office at which they are to be delivered at the Closing
Date (or such other office as may be specified for that purpose in Schedule I)
at least one business day prior to the Closing Date.
It is understood that the Underwriters propose to offer the Designated
Securities for sale as set forth in the Prospectus. It is also understood that
you, acting individually and not in a representative capacity, may (but shall
not be obligated to) make payment to [the Company] [Finance] on behalf of any
other Underwriter for Designated Securities to be purchased by such Underwriter.
Any such payment by you shall not relieve any such Underwriter of any of its
obligations hereunder.
[The Company] [Finance] will pay to you, at the Closing Date, for the
account of each Underwriter any commission or other compensation that is
specified in Schedule I to the Pricing Agreement. Such payment will be made by
certified or official bank check or checks in New York Clearing House (next day)
funds.
4. Certain Agreements of the Company [and Finance]. The Company
-----------------------------------------------
[and Finance] agree[s] with the several Underwriters of any Designated
Securities that it will furnish to ____________________, counsel for the
Underwriters, one signed copy of the registration statement relating to the
Securities, including all exhibits, in the form it became effective and of all
amendments thereto and that, in connection with each offering of Securities:
(a) The Company [and Finance] will file the Prospectus with the
Commission pursuant to and in accordance with Rule 424(b)(2) (or, if
applicable and if consented to by the Representatives, subparagraph (5)) not
later than the second business day following the execution and delivery of
this Agreement.
(b) The Company [and Finance] will advise the Representatives
promptly of any proposal to amend or supplement the Registration Statement or
the Prospectus and will afford the Representatives a reasonable opportunity to
comment on any such proposed amendment or supplement; and the Company [and
Finance] will also advise the Representatives promptly of the filing of any such
amendment or supplement and of the institution by the Commission of any stop
order proceedings in respect of the Registration Statement or of any part
thereof and will use its
<PAGE>
____________, 199__
Page 6
best efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the Prospectus
to comply with the Act, the Company [and Finance] promptly will prepare and file
with the Commission an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance. Neither the
Representatives' consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 5.
(d) As soon as practicable, but not later than 16 months, after
the date of this Agreement, the Company will make generally available to its
securityholders an earning statement covering a period of at least 12 months
beginning after the later of (i) the effective date of the Registration
Statement relating to the Securities, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become effective prior
to the date of this Agreement and (iii) the date of the Company's most recent
Annual Report on Form 10-K filed with the Commission prior to the date of this
Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company [and Finance] will furnish to the
Representatives copies of the Registration Statement, including all exhibits,
any related preliminary prospectus, any related preliminary prospectus
supplement, the Prospectus and all amendments and supplements to such documents,
in each case as soon as available and in such quantities as are reasonably
requested.
(f) The Company [and Finance] will arrange for the qualification
of the Designated Securities for sale and the determination of their eligibility
for investment under the laws of such jurisdictions as the Representatives
designate and will continue such qualifications in effect so long as required
for the distribution.
(g) During the period of five years after the date of this
Agreement, the Company will furnish to the Representatives and, upon request, to
each of the other
<PAGE>
____________, 199__
Page 7
Underwriters, if any, as soon as practicable after the end of each fiscal year,
a copy of its annual report to stockholders for such year; and the Company will
furnish to the Representatives (i) as soon as available, a copy of each report
or definitive proxy statement of the Company filed with the Commission under the
Securities Exchange Act of 1934 (the "Exchange Act") or mailed to stockholders,
and (ii) from time to time, such other information concerning the Company as the
Representatives may reasonably request.
(h) The Company [and Finance] will pay all expenses incident to
the performance of [its] [their] obligations under this Agreement and will
reimburse the Underwriters for any expenses (including fees and disbursements of
counsel) incurred by them in connection with qualification of the Securities for
sale and determination of their eligibility for investment under the laws of
such jurisdictions as the Representatives may designate and the printing of
memoranda relating thereto for any fees charged by investment rating agencies
for the rating of the Securities, for the filing fee of the National Association
of Securities Dealers, Inc. relating to the Securities and for expenses incurred
in distributing the Prospectus, and preliminary prospectuses and any preliminary
prospectus supplements to Underwriters.
[Include following Section (i) if transaction has debt component]
(i) For a period beginning at the time of execution of the date
of the Pricing Agreement for such Designated Securities and ending 30 days after
the Closing Date, without the prior consent of the Representatives, the Company
will not offer, sell, contract to sell or otherwise dispose of any United States
dollar-denominated debt securities issued or guaranteed by the Company and
having a maturity of more than one year from the date of issue.
[Include following Section (i) if transaction has equity
component]
[(j) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and ending 30 days after the Closing
Date, the Company will not offer, sell, contract to sell or otherwise dispose of
any shares of Common Stock or any securities of the Company [or Finance] at any
time convertible or exchangeable into or exercisable for (x) shares of Common
Stock or (y) securities convertible or exchangeable into or exercisable for
shares of Common Stock (other than pursuant to employee or director stock option
plans existing, or on the
<PAGE>
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Page 8
conversion or exchange of convertible or exchangeable securities outstanding, on
the date of such Pricing Agreement), without the prior written consent of the
Representatives.]
5. Conditions to the Obligations of the Underwriters. The
-------------------------------------------------
obligations of the several Underwriters to purchase and pay for the Designated
Securities will be subject to the accuracy of the representations and warranties
on the part of [each of Finance and] the Company herein, to the accuracy of the
statements of Company [and Finance] officers made pursuant to the provisions
hereof, to the performance by the Company [and Finance] of its obligations
hereunder and to the following additional conditions precedent:
(a) On or prior to the date of the Pricing Agreement, or as
promptly thereafter as practicable, the Representatives shall have received a
letter, dated the date of delivery thereof, of Price Waterhouse, confirming that
they are independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating in effect
that:
(i) in their opinion, the financial statements and
schedules examined by them and included in the prospectus contained in the
registration statement relating to the Securities, as amended at the date
of such letter, comply in form in all material respects with the
applicable accounting requirements of the Act of the Securities Exchange
Act of 1934, as applicable, and the related published Rules and
Regulations;
(ii) they have performed a review of unaudited interim
financial information included in such prospectus in accordance with
standards established by the American Institute of Certified Public
Accountants in Statement on Auditing Standards No. 71, Interim Financial
Information, as indicated in their report or reports included in the
Company's Quarterly Reports on Form 10-Q;
(iii) on the basis of the review referred to in (ii)
above, a reading of the latest available interim financial statements of
the Company, inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that (A) the
unaudited financial statements, if any, included in such prospectus do
not comply in form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable,
and the related
<PAGE>
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Page 9
published Rules and Regulations or are not in conformity with generally
accepted accounting principles applied on a basis substantially consistent
with that of the audited financial statements included in such prospectus
or (B) the unaudited pro forma condensed consolidated financial statements
included or incorporated by reference in such prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and Regulations or
the pro forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in such prospectus (in each case to the extent that
such dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's accounting
system or are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in such letter
and have found such dollar amounts, percentage and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
All financial statements and schedules included in material incorporated by
reference into such prospectus shall be deemed included in such prospectus for
purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this Agreement.
No stop order suspending the effectiveness of the Registration Statement or of
any part thereof shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of the Company[, Finance] or
any Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution of this Agreement, there shall not
have occurred (i) any change, or any development involving a prospective
change, in or affecting particularly the business or properties of the Company
or its subsidiaries which, in the judgment of a majority in interest of the
Underwriters, including any Representatives, materially impairs the investment
quality of the Designated Securities or the Securities; (ii) any downgrading
in the rating of any debt securities of the Company by any "nationally
recognized
<PAGE>
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Page 10
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act), or any public announcement that any such organization has under
surveillance or review of its rating of any debt securities of the Company
(other than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating); (iii) any
suspension or limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such exchange,
or any suspension of trading of any securities of the Company on any exchange or
in the over-the-counter market; (iv) any banking moratorium declared by Federal
or New York authorities; or (v) any outbreak or escalation of major hostilities
in which the United States is involved, any declaration of war by Congress or
any other substantial national or international calamity or emergency if, in the
reasonable judgment of a majority in interest of the Underwriters, including any
Representatives, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Designated Securities.
(d) The Representatives shall have received opinions, dated
the Closing Date, of Davis, Graham & Stubbs, counsel for the Company [and
Finance] (as to paragraphs (i), (iv), (v), (vi)(A) and (B), (vii), (viii) and
(x)) and Kathleen J. Gormley, Esq., General Attorney of the Company [and
Finance] (as to paragraphs (i), (ii), (iii), (v), (vi)(A), (B) and (C), (vii)
and (ix)), to the effect that:
(i) [Each of] the Company [and Finance] has been duly
incorporated and is an existing corporation in good standing under the
laws of the State of Delaware and has full corporate power and authority
to conduct its business as described in the Registration Statement and
Prospectus;
(ii) [Each of] the Company [and Finance] has been duly
qualified to do business in each jurisdiction in which it owns or leases
real property or in which the conduct of its business requires such
qualification except where the failure to be so qualified, considering all
such cases in the aggregate, does not involve a material risk to the
business, properties, financial position or results of operations of the
Company and its subsidiaries;
(iii) To the best knowledge of such counsel, all of the
outstanding shares of capital stock of each United States subsidiary of
the Company named in the Prospectus (except for directors' qualifying
shares and
<PAGE>
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Page 11
except as otherwise stated in the Registration Statement) are owned
beneficially by the Company subject to no security interest, other
encumbrance or adverse claim (with such exceptions as would not have a
material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries);
(iv) [The Indenture and] the Designated Securities have been
duly authorized, [the Indenture has been duly qualified under the Trust
Indenture Act, executed and delivered,] the Designated Securities
purchased by the Underwriters have been duly executed, authenticated,
issued and delivered, and [the Indenture and] such Designated Securities
constitute, [and any Contract Securities, when executed, authenticated,
issued and delivered in the manner provided in the Indenture and the
Delayed Delivery Contracts,] will constitute, valid and legally binding
obligations of the Company [and Finance], 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 equitable
principles;
(v) The Registration Statement has become effective under the
Act; the Prospectus Supplement has been filed as required by Section 2(a)
hereof; and to the best knowledge of such counsel no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been instituted or
threatened by the Commission;
(vi) (A) Each part of the Registration Statement, when such
part became effective, and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission and at the
Closing Date, complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations; and (B) (note: the remainder of this clause (vi) may be
expressed as a statement rather than an opinion and in a separate letter
or paragraph in the standard form of such counsel, and this parenthetical
shall also apply to clause (vii) below) such counsel have no reason to
believe that either any part of the Registration Statement, when such
part became effective, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus and any amendment or supplement thereto, on the
<PAGE>
____________, 199__
Page 12
date of filing thereof with the Commission or at the Closing Date, included
an untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and (C) the documents
incorporated by reference in the Registration Statement or Prospectus or
any amendment or supplement thereto, when they became effective under the
Act or were filed with the Commission under the Exchange Act, as the case
may be, complied as to form in all material respects with the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; it being understood that such
counsel need express no opinion as to the financial statements or other
financial or statistical data included in any of the documents mentioned
in this clause;
(vii) The description in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings, contracts and
other documents is accurate and fairly presents the information required
to be shown; and such counsel do not know of any statutes or legal or
governmental proceedings required to be described in the Prospectus that
are not described as required, or of any contracts or documents of a
character required to be described in the Registration Statement or
Prospectus (or required to be filed under the Exchange Act if upon such
filing they would be incorporated by reference therein) or to be filed as
exhibits to the Registration Statement that are not described and filed
as required;
(viii) This Agreement [and], the Pricing Agreement [and any
Delayed Delivery Contracts] have been duly authorized, executed and
delivered by the Company [and Finance];
(ix) The performance of this Agreement [and], the Pricing
Agreement [and of any Delayed Delivery Contracts] and the consummation of
the transactions herein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, any agreement or instrument known to such counsel to
which the Company [or Finance] is a party or by which it is bound or to
which any of the property of the Company [or Finance] is subject, the
Company's [or Finance's] charter or bylaws, or any order, rule or
regulation known to such counsel of any court or governmental agency or
body having jurisdiction over the Company [or Finance] or any of [its]
[their] properties; and
<PAGE>
____________, 199__
Page 13
(x) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required for the
consummation of the transactions contemplated by this Agreement and the
Pricing Agreement in connection with the issuance or sale of the Designated
Securities by the Company [and Finance], except such as have been obtained
under the Act [and the Trust Indenture Act] and such as may be required
under state securities laws in connection with the purchase and
distribution of the Designated Securities by the Underwriters.
(e) The Representatives shall have received from
____________________, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the incorporation of the
Company [and Finance], the validity of the Designated Securities, the
Registration Statement, the Prospectus and other related matters as they
may reasonably require, and the Company [and Finance] shall have furnished
to such counsel such documents as they reasonably request for the purpose
of enabling them to pass upon such matters.
(f) The Representatives shall have received a certificate, dated
the Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company [and Finance] in which such
officers, to the best of their knowledge after reasonable investigation,
shall state that the representations and warranties of the Company [and
Finance] in this Agreement are true and correct, that [each of] the Company
[and Finance] has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to the
Closing Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated by
the Commission and that, subsequent to the date of the most recent
financial statements in the Prospectus, there has ben no material adverse
change in the financial position or results of operation of the Company and
its subsidiaries except as set forth in or contemplated by the Prospectus
or as described in such certificate.
(g) The Representatives shall have received a letter, dated the
Closing Date, of Price Waterhouse, which reconfirms the matters set forth
in their letter delivered pursuant to subsection (a) of this Section and
states in effect that:
<PAGE>
____________, 199__
Page 14
(i) in their opinion, any financial statements or schedules
examined by them and included in the Prospectus and not covered by their
letter delivered pursuant to subsection (a) of this Section comply in
form in all material respects with the applicable accounting requirements
of the Act or the Exchange Act, as applicable, and the related published
Rules and Regulations;
(ii) they have performed a review of unaudited interim
financial information included in the Prospectus and not covered by their
letter delivered pursuant to subsection (a) of this Section in accordance
with standards established by the American Institute of Certified Public
Accountants in Statement on Auditing Standards No. 71, Interim Financial
Information, as indicated in their report or reports included in the
Company's Quarterly Reports on Form 10-Q;
(iii) on the basis of the review referred to in (ii) above, a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that:
a. the unaudited financial statements, if any, included in
the Prospectus and not covered by their letter delivered pursuant to
subsection (a) of this Section do not comply in form in all material
respects with the applicable accounting requirements of the Act or the
Exchange Act, as applicable, and the related published Rules and
Regulations or are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent with
that of the audited financial statements included in the Prospectus;
b. to the extent not covered by their letter delivered
pursuant to subsection (a) of this Section, the unaudited pro forma
condensed consolidated financial statements included or incorporated
by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations or the pro forma
adjustments have not been properly applied to the historical amounts
in the compilation of those statements;
<PAGE>
____________, 199__
Page 15
c. the unaudited capsule information, if any, included in
the Prospectus does not agree with the amounts set forth in the
unaudited consolidated financial statements from which it was derived
or was not determined on a basis substantially consistent with that of
the audited financial statements included in the Prospectus;
d. at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more than
five days prior to the Closing Date, there was any change in the
capital stock or any increase in short term indebtedness or long term
debt of the Company and consolidated subsidiaries or, at the date of
the latest available balance sheet read by such accountants, there was
any decrease in consolidated net current assets or, as compared with
amounts shown on the latest balance sheet included in the Prospectus;
or
e. for the period from the date of the latest income
statement included in the Prospectus to the closing date of the latest
available income statement read by such accountants there were any
decreases, as compared with the corresponding period of the previous
year, in consolidated net sales, net operating income or in the ratio
of earnings to fixed charges;
except in all cases set forth in clauses (D) and (E) above for changes,
increases or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information included in the Prospectus and not covered by their letter
delivered pursuant to subsection (a) of this Section (in each case to the
extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Company and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures specified
in such letter and have found such dollar amounts, percentages and other
financial information to be in agreement with such results, except as
otherwise specified in such letter.
<PAGE>
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Page 16
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus for the
purposes of this subsection.
The Company [and Finance] will furnish the Representatives with such
conformed copies of such opinions, certificates, letters and documents as they
reasonably request.
6. Indemnification and Contribution.
--------------------------------
(a) The Company [and Finance] will indemnify and hold
harmless each Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that [neither] the Company [nor Finance] will [not]
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives, if any, specifically for
use therein.
(b) Each Underwriter will indemnify and hold harmless the
Company [and Finance] against any losses, claims, damages or liabilities to
which the Company [or Finance] may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus or preliminary prospectus supplement, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make
<PAGE>
____________, 199__
Page 17
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives, if any, specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who shall not, except with
the consent of the indemnified party, be counsel to the indemnifying party),
and after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with
the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section is
legally unavailable or insufficient as a result of legal unavailability to
hold harmless an indemnified party under subsection (a) or (b) above, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities
referred to in subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company [or
Finance] on the one hand and the Underwriters on the other from the offering
of the Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company [or Finance] on the one hand and the
Underwriters on the other in
<PAGE>
____________, 199__
Page 18
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company [or Finance] on
the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company [or Finance] bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company[,
Finance] or the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), 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. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company [and Finance] under this
Section shall be in addition to any liability which the Company may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section shall be in addition to any
liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Company [and
Finance], to each officer of the Company [and Finance] who has signed the
Registration Statement and to each person, if any, who controls the Company [or
Finance] within the meaning of the Act.
<PAGE>
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Page 19
7. Default of Underwriters. If any Underwriter or Underwriters
-----------------------
default in their obligations to purchase Designated Securities under this
Agreement and the Pricing Agreement and the aggregate principal amount of the
Designated Securities that such defaulting Underwriter or Underwriters agreed
but failed to purchase does not exceed 10% of the total principal amount of the
Designated Securities, the Representatives may make arrangements satisfactory to
the Company [and Finance] for the purchase of such Designated Securities by
other persons, including any of the Underwriters, but if no such arrangements
are made by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments under this Agreement,
to purchase the Designated Securities that such defaulting Underwriters agreed
but failed to purchase. If any Underwriter or Underwriters so default and the
aggregate principal amount of the Designated Securities with respect to which
such default or defaults occur exceeds 10% of the total principal amount of the
Designated Securities and arrangements satisfactory to the Representatives and
the Company [and Finance] for the purchase of such Designated Securities by
other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company [and Finance], except as provided in Section 8. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default. The respective commitments of the
several Underwriters for the purposes of this Section shall be determined
without regard to reduction in the respective Underwriters' obligations to
purchase the principal amounts of the Designated Securities set forth opposite
their names in Schedule I to the Pricing Agreement [as a result of Delayed
Delivery Contracts entered into by the Company].
The foregoing obligations and agreements set forth in this Section
will not apply if Schedule I to the Pricing Agreement specifies that such
obligations and agreements will not apply.
8. Survival of Certain Representations and Obligations. The
---------------------------------------------------
respective indemnities, agreements, representations, warranties and other
statements of [each of] the Company [and Finance] or its officers and of the
several Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter, the Company[,
Finance] or any of their respective representatives, officers or directors or
any controlling person and will survive delivery of and payment for the
Securities. If this Agreement is terminated pursuant to
<PAGE>
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Page 20
Section 7 or if for any reason the purchase of the Designated Securities by the
Underwriters under this Agreement is not consummated, the Company [and Finance]
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 4 and the respective obligations of the Company[, Finance]
and the Underwriters pursuant to Section 6 shall remain in effect. If the
purchase of the Designated Securities by the Underwriters is not consummated for
any reason other than solely because of the termination of this Agreement
pursuant to Section 7 or the occurrence of any event specified in clause (iii),
(iv) or (v) of Section 5(c), the Company [and Finance] will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Designated Securities.
9. Notices. All communications hereunder will be in writing
-------
and, if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to them at their addresses furnished to the Company [and Finance] in
writing for the purpose of communications hereunder or, if sent to the Company
[and Finance], will be mailed, delivered or telegraphed and confirmed to it at
its address set forth in the Prospectus, Attention: Chief Financial Officer.
In all dealings with the Company under this Agreement, you shall act
on behalf of each of the several Underwriters, and any action under this
Agreement taken by you or by any one of you designated in Schedule I to the
Pricing Agreement will be binding upon all the Underwriters.
10. Successors. This Agreement will inure to the benefit of and
----------
be binding upon the Company and such Underwriters as are identified in Schedule
I to the Pricing Agreement and their respective successors and the officers and
directors and controlling persons referred to in Section 6, and no other person
will have any right or obligation hereunder.
11. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
--------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
If the foregoing correctly sets forth the understanding between the
Company[, Finance] and the several Underwriters, please so indicate in the space
provided below for that purpose, whereupon this letter shall constitute a
binding agreement between the Company[, Finance] and the several Underwriters
purpose, whereupon this letter shall constitute a binding agreement between the
Company[, Finance] and the several
<PAGE>
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Page 21
Underwriters. Alternatively, the execution of this Agreement by the Company and
its acceptance by or on behalf of the Underwriters may be evidenced by an
exchange of telegraphic or other written communications.
Very truly yours,
CYPRUS AMAX MINERALS COMPANY
By
-------------------------------
[CYPRUS AMAX FINANCE CORPORATION]
By
------------------------------]
ACCEPTED as of the date first above
written on behalf of ourselves
and as Representatives of the
other Underwriters named in
Schedule A hereto.
By
------------------------------
By
------------------------------
<PAGE>
ANNEX I
Pricing Agreement
-----------------
June 6, 1994
[Names of Representatives]
As Representatives of the several
Underwriters named in Schedule I
hereto,
c/o \
\
New York, New York 10004
_______________, 19__
Dear Sirs:
Cyprus Amax Minerals Company, a Delaware corporation (the "Company")
[and Cyprus Amax Finance Corporation, a Delaware corporation ("Finance Sub")],
propose[s], subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated _______________, 19__ (the "Underwriting
Agreement"), between the Company [and Finance Sub] on the one hand and [(names
of Representatives named therein)] on the other hand, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities" [consisting of Firm
Securities and any Optional Securities the Underwriters may elect to purchase]).
Each of the provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Pricing
Agreement to the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth therein shall
be deemed to have been made at and as of the date of this Pricing Agreement,
except that each representation and warranty which refers to the Prospectus in
Section 2 of the Underwriting
<PAGE>
[Names of Representatives]
June 6, 1994
Page 2
Agreement shall be deemed to be a representation or warranty as of the date of
the Underwriting Agreement in relation to the Prospectus (as therein defined),
and also a representation and warranty as of the date of t his Pricing Agreement
in relation to the Prospectus as amended or supplemented relating to the
Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, [a] the Company [and
Finance Sub] agree[s] to issue and sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the Company
[and Finance Sub], at the time and place and at the purchase price to the
Underwriters set forth in Schedule II hereto, the number of Firm Securities set
forth opposite the name of such Underwriter in Schedule I hereto [and, (b) in
the event and to the extent that the Underwriters shall exercise the election to
purchase Optional Securities, as provided below, the Company [and Finance Sub]
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company at
the purchase price to the Underwriters set out in Schedule II hereto that
portion of the number of Optional Securities as to which such election shall
have been exercised].
[The Company [and Finance Sub] hereby grant[s] to each of the
Underwriters the right to purchase at their election up to the number of
Optional Securities set forth opposite the name of such underwriter in Schedule
I hereto on the terms referred to in the paragraph above for the sole purpose of
covering overallotments in the sale of the Firm Securities. Any such election
to purchase Optional Securities may be exercised by written notice from the
Representatives to the Company given
<PAGE>
[Names of Representatives]
June 6, 1994
Page 3
within a period of [ ] calendar days after the date of this Pricing
Agreement, setting forth the aggregate number of Optional Securities to be
purchased and the date on which such Optional Securities are to be delivered, as
determined by the Representatives and the Company otherwise agree in writing, no
earlier than two or later than ten business days after the date of such notice.]
If the foregoing is in accordance with your understanding, please sign
and return to us [7] counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company [and Finance Sub]. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of which
shall be submitted to the Company for examination, upon request, but without
warranty on the part of the Representatives as to the authority of the signers
thereof.
Very truly yours,
CYPRUS AMAX MINERALS COMPANY
By:
------------------------------
Name:
Title:
[CYPRUS AMAX FINANCE CORPORATION
By:
------------------------------
Name:
Title:]
<PAGE>
[Names of Representatives]
June 6, 1994
Page 4
Accepted as of the date hereof:
[Name(s) of representatives]
By:___________________________
[Name(s) of Co-Representative
Corporation(s)]
By:___________________________
Name:
Title:
- ------------------------------
[Name(s) of Co-Representative
Partnership(s)]
On behalf of each of the Underwriters
<PAGE>
CYPRUS AMAX MINERALS COMPANY
Common Stock, no par value
SALES AGENCY AGREEMENT
----------------------
KIDDER, PEABODY & CO. INCORPORATED
10 Hanover Square
New York, N.Y. 10005
---------------
(Insert date)
Gentlemen:
Cyprus Amax Minerals Company, a Delaware corporation (the "Company"),
confirms its agreement with Kidder, Peabody & Co. Incorporated (the "Agent"),
as follows:
1. Description of Securities. The Company proposes to issue and sell
through the Agent, as exclusive sales agent, up to 4,000,000 shares (the
"Maximum Amount") of common stock, no par value, on the particular terms set
forth in Section 3 hereof (the "Stock").
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the Agent that:
(a) A registration statement on Form S-3 (Registration No.________)
with respect to the Stock, including a form of prospectus, has been
carefully prepared by the Company in conformity with the reqirements of
the Securities Act of 1933 (the "Act") and the rules and regulations
("Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder and filed with the Commission and has become
effective. Such registration statement and prospectus may have been
amended or supplemented prior to the date of this Agreement. Any such
amendment or supplement was so prepared and filed and any such amendment
filed after the effective date of such registration statement has become
effective. Such registration statement, as it may have heretofore been
amended, is referred to herein as the "Registration Statement," and the
final form of prospectus included in the Registration Statement, as
amended or supplemented from time to time, is referred to herein as the
"Prospectus." Any reference herein to the Registration Statement, the
Prospectus, or any amendment or supplement thereto shall be deemed to
refer to and include the documents incorporated (or deemed to be
incorporated) by reference therein, and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration
Statement or Prospectus shall be deemed to refer to and include the
filing after the execution hereof of any document with the Commission
deemed to be incorporated by reference therein.
(b) Each part of the Registration Statement, when such part became or
becomes effective, and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission and at each
Closing Date (as hereinafter defined), conformed or will conform in all
material respects with the requirements of the Act and the rules and
regulations of the Commission thereunder (the "Rules and Regulations");
each part of the Registration Statement, when such part became or becomes
effective, did not or will 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; and the Prospectus
and any amendment or supplement thereto, on the date of filing thereof with
the Commission and at each Closing Date, did not or will not include an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
<PAGE>
circumstances under which they were made, not misleading; except that the
foregoing shall not apply to statements in or omissions from any such
document in reliance upon, and in conformity with, written information
furnished to the Company by the Agent, specifically for use in the
preparation thereof.
(c) The documents incorporated by reference in the Registration
Statement, the Prospectus, any amendment or supplement thereto, when they
became or become effective under the Act or were or are filed with the
Commission under the Securities Exchange Act of 1934, as amended
("Exchange Act"), as the case may be, conformed or will conform in all
material respects with the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder.
(d) The consolidated financial statements of the Company, together
with the related notes and schedules, set forth or incorporated by
reference in the Registration Statement and Prospectus for the periods
therein specified were prepared in conformity with generally accepted
accounting principles consistently applied throughout the periods
involved (except as otherwise stated therein).
3. Sale and Delivery of Securities. On the basis of the representations,
warranties and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company agrees to issue and sell exclusively
through Agent, and Agent agrees to sell, as exclusive sales agent for the
Company, on a best efforts basis, up to the Maximum Amount of Stock on the terms
set forth herein.
The Stock, up to the Maximum Amount, is to be sold during one or more
pricing periods (each a "Pricing Period"), each Pricing Period consisting of
five consecutive calendar days. The Company and the Agent shall agree to any
Pricing Period and the number of shares of Stock (not to exceed 105,000
shares) to be sold by the Agent during each such Pricing Period (the "Average
Market Price Shares"). Subject to the terms and conditions hereof, the Agent
shall use its best efforts to (i) sell all of the Average Market Price Shares
during each such Pricing Period, and (ii) sell the entire Maximum Amount
during no more than 104 Pricing Periods. The Agent shall sell the shares of
Stock by means of ordinary brokers' transactions on any national securities
exchange, including the New York Stock Exchange (the "NYSE"),on which such
shares of Stock are listed. The Company or the Agent may, upon notice to the
other party hereto by telephone (confirmed promptly by telecopy), suspend the
offering of Stock during any Pricing Period; provided, however, that such
-------- -------
suspension or termination shall not affect or impair the parties' respective
obligations with respect to shares of Stock sold hereunder prior to the giving
of such notice.
The net proceeds (the "Net Proceeds") to the Company for the Average Market
Price Shares sold by the Agent during a Pricing Period will equal the sum of (i)
the product of (x) 97.5% times (y) the average of the arithmetic mean of a
high and low sales prices of the common stock of the Company reported on the
NYSE for each trading day of such Pricing Period (the "Average Market Price"),
times (z) the number of Average Market Price Shares sold during such Pricing
Period plus (ii) Alternative Proceeds (defined below), if any, plus (iii) Excess
Proceeds (defined below), if any. Subject to adjustment as set forth in the
next two paragraphs, the compensation to the Agent with respect to the sale of
Average Market Price Shares sold hereunder shall equal the difference between
the aggregate gross sales prices at which such sales are actually effected by
the Agent and the Net Proceeds.
Prior to and from time to time during any Pricing Period, the Company may
instruct the Agent by telephone (confirmed promptly by telecopy) not to sell
shares of Stock if such sales cannot be effected at or above the price
designated by the Company in any such instruction. If such an instruction is
given and as a result thereof the Agent is unable to sell shares of Stock in an
amount greater than or equal to the daily pro rata portion of Average Market
Price Shares to be sold during such Pricing Period, then (i) that day's high and
low sales prices of common stock of the Company reported on the NYSE shall not
be included in the calculation of Average Market Price and (ii) the net proceeds
payable to the Company (the "Alternative Proceeds") and the compensation payable
to the Agent in respect of any sales of Average Market Price Shares effected
that day by the Agent shall be equal to 97.5% and 2.5% respectively, of the
weighted average sales price at which the Agent has actually effected sales of
Average Market Price Shares during that day.
-2-
<PAGE>
To the extent that the compensation payable to the Agent hereunder would
otherwise exceed ten percent of the aggregate gross sales prices of the Average
Market Price Shares during any Pricing Period, such excess over ten percent
shall constitute "Excess Proceeds" payable to the Company.
During any Pricing Period, the Company and the Agent may agree upon the
sale of shares ("Additional Shares") of Stock in an amount of 1,000 shares or
more, in addition to the sale of Average Market Price Shares (such Additional
Shares to be included in the Maximum Amount). The compensation to the Agent for
sales of Additional Shares shall be, with respect to any Pricing Period: (i)
$0.10 per share for the first 105,000 Additional Shares sold during such
Pricing Period and (ii) $0.40 per share for any Additional Shares sold during
such Pricing Period in excess thereof. The sale of Additional Shares during any
day shall be confirmed in writing by the Agent to the Company following the
close of business that day. All other shares sold during a Pricing Period not
so confirmed shall be deemed Average Market Price Shares.
The Agent shall provide written confirmation to the Company following the
close of business on the final day of each Pricing Period setting forth the
following with regard to such Pricing Period: the dates included within the
Pricing Period, the number of Average Market Price Shares sold, the gross
proceeds from the sale of such shares, the high and low prices at which such
shares were sold, the Net Proceeds to the Company, the amount of Excess
Proceeds, if any, the amount of Alternative Proceeds, if any, the compensation
payable by the Company to the Agent with respect to such sales and the Average
Market Price. The Agent hereby acknowledges that the Company will be relying
upon such information in preparing the Prospectus Supplement with respect to
each Pricing Period.
Settlement for all shares shall be effected via the Depository Trust
Corporation on a delivery-versus-payment basis. Settlement for sales of
Additional Shares will occur on the fifth business day following the date on
which such sales are made. The amount of proceeds for such sales to be
delivered to the Company against the receipt of the Additional Shares sold shall
be equal to the aggregate sales prices at which such Additional Shares were
sold, net of the Agent's compensation for such sales and after deduction for any
transaction fees imposed by any governmental or self-regulatory organization in
respect of such sales. Settlement for sales of Average Market Price Shares will
occur on a weekly basis as follows. On each Monday (or the next succeeding
business day if such Monday is not a business day) following the end of a
Pricing Period (each a "Closing Date"), the Average Market Price Shares sold
through the Agent during such Pricing Period will be delivered by the Company to
the Agent against payment of the Net Proceeds for such Pricing Period. The
Agent shall hold such Average Market Price Shares received, pending delivery of
such shares to the purchasers thereof, and the Agent may borrow, relend, pledge
and/or hypothecate such shares in the course of its stock loan and financing
activities.
On each Closing Date, the Company shall affirm in writing each
representation, warranty, covenant and other agreement contained in this
Agreement. The Company covenants and agrees with Agent that within two (2)
business days of the termination of each Pricing Period, the Company will file a
Prospectus Supplement under Rule 424(b) promulgated under the Act, which
Prospectus Supplement will set forth the following with regard to such Pricing
Period: the dates included within the Pricing Period, the number of such shares
of Stock sold through the Agent (separately identifying the number of Average
Market Price Shares), the high and low prices at which Average Market Price
Shares were sold, the Net Proceeds to the Company, the compensation payable by
the Company to the Agent with respect to sales of Average Market Price Sales and
the Average Market Price (all as provided in writing by the Agent for inclusion
in each such Prospectus Supplement). The obligations of the Agent to sell the
Stock shall be subject to the continuing accuracy of the
-3-
<PAGE>
representations and warranties of the Company herein, to the performance by the
Company of its obligations hereunder and to the continuing satisfaction of the
additional conditions specified in Section 5 of this Agreement.
4. Covenants. The Company covenants and agrees with Agent that:
(a) During the period in which a prospectus relating to the Stock is
required to be delivered under the Act, the Company will notify the Agent
promptly of the time when any subsequent amendment to the Registration
Statement has become effective or any subsequent supplement to the
Prospectus has been filed and of any request by the Commission for any
amendment or supplement to the Registration Statement or Prospectus or for
additional information; it will prepare and file with the Commission,
promptly upon the Agent's request, any amendments or supplements to the
Registration Statement or Prospectus that, in the Agent's reasonable
opinion, may be necessary or advisable in connection with the
distribution of the Stock by the Agent; it will file no amendment or
supplement to the Registration Statement or Prospectus (other than any
prospectus supplement relating to the offering of other securities
registered under the Registration Statement or any document required to
be filed under the Exchange Act that upon filing is deemed to be
incorporated by reference therein) to which the Agent shall reasonably
object by notice to the Company after having been furnished a copy a
reasonable time prior to the filing; and it will furnish to the Agent at
or prior to the filing thereof a copy of any such prospectus supplement
or any document that upon filing is deemed to be incorporated by
reference in the Registration Statement or Prospectus.
(b) Within the time during which a prospectus relating to the Stock
is required to be delivered under the Act, the Company will use its best
efforts to comply with all requirements imposed upon it by the Act and by
the Rules and Regulations, as from time to time in force, so far as
necessary to permit the continuance of sales of or dealings in the Stock as
contemplated by the provisions hereof and the Prospectus. If during such
period any event occurs as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances then existing, not misleading, or if during
such period it is necessary to amend or supplement the Registration
Statement or Prospectus to comply with the Act, the Company will promptly
notify the Agent and will amend or supplement the Registration Statement or
Prospectus (at the expense of the Company) so as to correct such statement
or omission or effect such compliance.
(c) The Company will use its best efforts to qualify the Stock for
sale under the securities laws of such jurisdictions as you reasonably
designate and to continue such qualifications in effect so long as required
for the distribution of the Stock, except that the Company shall not be
required in connection therewith to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction.
(d) The Company will furnish to the Agent copies of the Registration
Statement, the Prospectus (including all documents incorporated by
reference therein) and all amendments and supplements to the Registration
Statement or Prospectus that are filed with the Commission during the
period in which a prospectus relating to the Stock is required to be
delivered under the Act (including all documents filed with the Commission
during such period that are deemed to be incorporated by reference
therein), in each case as soon as available and in such quantities as you
may from time to time reasonably request, and will also furnish copies of
the Prospectus to the NYSE [and additional exchanges] in accordance with
Rule 153 of the Rules and Regulations.
(e) As soon as practicable, but not later than 15 months, after the
date of this Agreement, the Company will make generally available to its
securityholders an earning statement covering a period of at least 12
months beginning after the later of (i) the effective date of the
Registration Statement relating to the Securities, (ii) the effective
date of the most recent post-effective amendment to the Registration
Statement to become effective prior to the date of this Agreement and
(iii) the date of the Company's most recent Annual Report on Form 10-K
filed with the Commission prior to the date of this Agreement, which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 of the
Rules and Regulations.
-4-
<PAGE>
(f) The Company, whether or not the transactions contemplated
hereunder are consummated or this Agreement is terminated, will pay all
expenses incident to the performance of its obligations hereunder
(including, but not limited to, any transaction fees imposed by any
governmental or self-regulatory organization with respect to transactions
involving Additional Shares), will pay the expenses of printing all
documents relating to the offering, and will reimburse the Agent for any
expenses (including fees and disbursements of counsel) incurred by it in
connection with the matters referred to in Section 4(d) hereof and the
preparation of memoranda relating thereto and for any filing fee of the
National Association of Securities Dealers, Inc. relating to the Stock.
The Company shall not in any event be liable to the Agent for loss of
anticipated profits from the transactions covered by this Agreement.
(g) The Company will not, directly or indirectly, offer or sell, any
shares of common stock (other than the Stock) or securities convertible
into or exchangeable for, or any rights to purchase or acquire, common
stock during the period ending on the final Closing Date for the sale of
Stock hereunder (a) without giving you three business days' prior written
notice specifying the nature of the proposed sale and the date of such
proposed sale, or (b) if, following the receipt of such notice, you object
to such sale in writing prior to the date specified in such notice or prior
to the date of such proposed sale; provided, however, that the foregoing
-------- -------
shall not apply to the Company (i) issuing and/or selling shares of its
common stock or warrants, options or other rights exercisable or
convertible into shares of its common stock to employees of the Company and
its subsidiaries, (ii) issuing and/or selling shares of common stock
pursuant to any employee stock option plan, stock ownership plan or
dividend reinvestment plan of the Company now or hereinafter in effect, and
(iii) issuing common stock issuable upon conversion of securities or the
exercise of warrants, options or other rights in effect or outstanding on
the date hereof.
(h) The Company will apply the net proceeds from the sale of the
Stock as set forth in the Prospectus.
(i) The Company will, at any time during the term of this
Agreement, as supplemented from time to time, advise the Agent
immediately after it shall have received notice or obtain knowledge
thereof, of any information or fact that would alter or affect any
opinion, certificate, letter and other document provided to the Agent
pursuant to Section 5 herein.
5. Conditions of Agent's Obligations. The obligations of the Agent to
sell the Stock as provided herein shall be subject to the accuracy, as of the
date hereof, and as of each Closing Date for any Pricing Period contemplated
under this Agreement of the representations and warranties of the Company
herein, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall
have been instituted or, to the knowledge of the Company or the Agent,
threatened by the Commission, and any request of the Commission for
additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to your
satisfaction.
(b) The Agent shall not have advised the Company that the
Registration Statement or Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact that in your opinion is
material, or omits to state a fact that in the Agent's opinion is
material and is required to be stated therein or is necessary to make the
statements therein not misleading.
(c) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus as supplemented, there shall not have been
any material adverse change, on a consolidated basis, in the capital
stock, short-term or long-term debt of the Company and its subsidiaries,
or any material adverse change, that would have a Material Adverse Effect
on the condition (financial or other), business, net worth or results of
operations of the Company and its subsidiaries, or any change in the
rating assigned to any securities of the Company.
(d) The Agent shall have received at the date of the commencement of
the first Pricing Period hereunder (the "Commencement Date") and at each
Closing Date hereunder, opinions of _______________, counsel for the
Company, dated as of the Commencement Date and dated as of such Closing
Date, respectively (it being understood that no opinion of counsel for the
Company shall be required if such Closing Date occurs less than one month
after the delivery to the Agent of an opinion pursuant to this subsection),
to the effect that:
-5-
<PAGE>
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
has full corporate power and authority to conduct its business as
described in the Registration Statement and Prospectus and is duly
qualified to do business in each jurisdiction in which it owns or
leases real property or in which the conduct of its business requires
such qualification, except where the failure to be so qualified,
considering all such cases in the aggregate, does not involve a
material risk to the business, properties, financial position or
results of operations of the Company and its subsidiaries; and,
all of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued,
are fully paid and non-assessable and (except as otherwise stated in
the Registration Statement) are owned beneficially by the Company
subject to no security interest, other encumbrance or adverse claim
(with such exceptions as would not have a material adverse effect on
the consolidated financial position, stockholders' equity or results
of operations of the Company and its subsidiaries);
(ii) All of the outstanding shares of common stock of the
Company have been duly authorized and validly issued, are fully paid
and non-assessable; the shares of Stock have been duly and validly
authorized, and, when issued and delivered to and paid for by the
purchasers thereof pursuant to the Agreement, will be fully paid and
nonassessable and conform to the description thereof in the
Prospectus; and the shareholders of the Company have no preemptive
rights with respect to the Stock;
(iii) The Registration Statement has become effective under
the Act; (if applicable, the filing of the Prospectus Supplements
pursuant to Rule 424(b) have been made in the manner and within the
time period required by Rule 424(b)); to the knowledge of such counsel
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
instituted or threatened by the Commission;
(iv) (A) The Registration Statement, when it became
effective, and the Prospectus and any amendment or supplement thereto,
on the date of filing thereof with the Commission (and, if applicable,
at each Closing Date on or prior to the date of the opinion), complied
as to form in all material respects with the requirements of the Act
and the Rules and Regulations; and (B) (note: the remainder of this
clause (iv) may be expressed as a statement rather than an opinion and
in a separate letter or paragraph in the standard form of such
counsel, and this parenthetical shall also apply to clause (v) below)
such counsel have no reason to believe that either the Registration
Statement contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus and
any amendment or supplement thereto, on the date of filing thereof
with the Commission or at the Commencement Date and the final Closing
Date (as the case may be), included an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and the documents incorporated by reference
in the Registration Statement or Prospectus or any amendment or
supplement thereto, when they became effective under the Act or were
filed with the Commission under the Exchange Act, as the case may be,
complied as to form in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules and
-6-
<PAGE>
regulations of the Commission thereunder; it being understood that
such counsel need express no opinion as to the financial statements or
other financial data included in any of the documents mentioned in
this clause;
(v) The description in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings, contracts
and other documents are accurate and fairly present the information
required to be shown; and such counsel do not know of any statutes or
legal or governmental proceedings required to be described in the
Prospectus that are not described as required, or of any contracts or
documents of a character required to be described in the Registration
Statement or Prospectus (or required to be filed under the Exchange
Act if upon such filing they would be incorporated by reference
therein) or to be filed as exhibits to the Registration Statement that
are not described and filed as required;
(vi) This Agreement has been duly authorized, executed and
delivered by the Company; the performance of this Agreement and the
consummation of the transactions contemplated herein by the Company
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any
agreement or instrument known to such counsel to which the Company is
a party or by which it is bound or to which any of the property of the
Company is subject, the Company's charter or by-laws, or any order,
rule or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of its
properties; and no consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required for
the consummation of the transactions contemplated by this Agreement in
connection with the issuance or sale of the Stock by the Company,
except such as have been obtained under the Act and such as may be
required by the listing of the Stock on the NYSE [and other exchanges]
or under state securities or blue sky laws in connection with the sale
and distribution of the Stock by the Agent;
(vii) Except for permits and similar authorizations
required under the securities or blue sky laws of certain states, no
consent, waiver, approval, authorization or other order of any
regulatory body, administrative agency or other governmental body is
legally required for the valid issuance and sale of the Stock by the
Agent on behalf of the Company as contemplated hereby and by the
Prospectus; and
Such counsel shall also state that such counsel has the
obligation to inform Kidder, Peabody in the event circumstances occur
which make the opinion untrue or misleading.
(c) At or prior to (i) the Commencement Date and (ii) the date of the
filing by the Company of any Quarterly Report on Form 10-Q, any Annual
Report on Form 10-K, or any other documents filed by the Company after the
date hereof and deemed to be incorporated by reference in the Prospectus or
any Prospectus Supplement (collectively, the "Periodic Reports"), the Agent
shall have received a letter from Price Waterhouse, independent public
accountants for the Company, dated the date of delivery thereof,
substantially in the form attached hereto as Annex I (with appropriate
modifications and references relating to such Periodic Reports).
(d) The Agent shall have received from the Company a certificate, or
certificates, signed by either Co-Chairman of the Board, the President or a
Vice President and by the principal financial or accounting officer of the
Company, dated as of the Commencement Date and dated as of each Closing
Date contemplated by this Agreement, to the effect that, to the best of
their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Company in this
Agreement are true and correct, as if made at and as of the
Commencement Date or the Closing Date for such Pricing Period (as the
case may be), and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
-7-
<PAGE>
satisfied at or prior to the Commencement Date and each such Closing
Date (as the case may be);
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that
purpose has been instituted or is threatened, by the Commission; and
(iii) Since the date of this Agreement there has occurred no
event required to be set forth in an amendment or supplement to the
Registration Statement or Prospectus that has not been so set forth
and there has been no document required to be filed under the Exchange
Act and the rules and regulations of the Commission thereunder that
upon such filing would be deemed to be incorporated by reference in
the Prospectus that has not been so filed.
(e) The Company shall have furnished to you such further certificates
and documents as you shall reasonably requested
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to the Agent. The Company will furnish the Agent with such conformed
copies of such opinions, certificates, letters and other documents as the Agent
shall reasonably request.
6. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless the Agent against
any losses, claims, damages or liabilities, joint or several, to which
Agent may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse
Agent for any legal or other expenses reasonably incurred by it in
connection with investigating or defending against such loss, claim,
damage, liability or action as such expenses are incurred; provided,
--------
however, that the Company shall not be liable in any such case to the
-------
extent that any such loss, claim,damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
written information relating to the Agent furnished to the Company by the
Agent specifically for use in the preparation thereof.
(b) The Agent will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any part of the Registration Statement when such part
became effective, or in the Registration Statement, the Prospectus or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made therein in reliance upon and in conformity with written
information relating to the Agent and furnished to the Company by the
Agent, specifically for use in the preparation thereof, and will
reimburse the Company for any legal or other expenses reasonably incurred
by the Company
-8-
<PAGE>
in connection with the investigating or defending against any such loss,
claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof, but the omission
so to notify the indemnifying party shall not relieve it from any liability
that it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party, and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and
the Agent on the other from the offering of the Stock or (ii) if the
allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above, but also the relative
fault of the Company on the one hand and the Agent on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Agent on the other shall be deemed to be in the same
proportion as the total proceeds from the offering of the Stock (before
deducting expenses) received by the Company bear to the total
compensation or profit (before deducting expenses) received or realized
by the Agent from the sale of the Stock on behalf of the Company. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or the Agent and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company and the
Agent agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were to be determined by pro rata
allocations or by any other method of allocation that does not take
account of the equitable considerations referred to in this first
sentence of this subsection (d). The amount paid by an indemnified party
as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending against any action or claim
that is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), the Agent shall not be required to
contribute any amount in excess of the amount by which the total actual
sales price at which the Stock sold by the Agent exceeds the amount of
any damages that Agent has otherwise been required to pay by reason of
such
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<PAGE>
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability that the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls the Agent within the meaning of the Act; and the obligations of
the Agent under this Section 6 shall be in addition to any liability that
the Agent may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company (including any person who, with
his consent, is named in the Registration Statement as about to become a
director of the Company), to each officer of the Company who has signed the
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
7. Representations and Agreements to Survive Delivery. All
representations, warranties and agreements of the Company herein or in
certificates delivered pursuant hereto, and the agreements of the Agent
contained in Section 6 hereof, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of the Agent or any
controlling persons, or the Company or any of its officers, directors or any
controlling persons, and shall survive delivery of and payment for the Stock.
8. [This section is reserved.]
9. Termination.
(a) The Agent shall have the right by giving notice as hereinafter
specified at any time at or prior to any Closing Date, to terminate this
Agreement if (i) the Company shall have failed, refused or been unable, at
or prior to the Closing Date, to perform any agreement on its part to be
performed hereunder, (ii) any other condition of the Agent's obligations
hereunder is not fulfilled, (iii) trading on the NYSE [or other exchange]
shall have been wholly suspended, (iv) minimum or maximum prices for
trading shall have been fixed, or maximum ranges for prices for securities
shall have been required, on the NYSE [or other exchange], by such exchange
or by order of the Commission or any other governmental authority having
jurisdiction, (v) a banking moratorium shall have been declared by Federal
or New York authorities, or (vi) an outbreak or material escalation of
major hostilities in which the United States is involved, a declaration of
war by Congress, any other substantial national or international calamity
or any other event or occurrence of a similar character shall have occurred
since the execution of this Agreement that, in your judgment, makes it
impractical or inadvisable to proceed with the completion of the sale of
and payment for the Stock to be sold by the Agent on behalf of the Company.
Any such termination shall be without liability of any party to any other
party except that the provisions of Section 4(g) and Section 6 hereof shall
at all times be effective. If the Agent elects to terminate this Agreement
as provided in this Section, the Agent shall provide the required notice
promptly by telephone, telex or telecopy, confirmed by letter.
(b) The Company shall have the right, by giving notice as hereinafter
specified, to terminate this Agreement in its sole discretion on the date
occurring sixty (60) days after the date of this Agreement and every sixty
(60) days thereafter. Notwithstanding the foregoing, if the Company
chooses to effect any offering of equity securities or equity-related
securities (other than the offering of securities contemplated hereby)
before the
-10-
<PAGE>
completion of the offering contemplated hereby, the Company may terminate
this Agreement at any time; provided, however, that if the Company elects
-------- -------
to terminate this Agreement prior to the sale by the Agent of __________
Average Market Price Shares, the Company agrees to pay the Agent a fee of
__________________ ($__________), and if the Company elects to terminate
this Agreement after the sale by the Agent of __________ Average Market
Price Shares but prior to the sale by the Agent of __________ Average
Market Price Shares, the Company agrees to pay the Agent a fee of
__________________ ($__________). Any termination shall be without
liability of any party to any other party except that the provisions of
Section 4(f), Section 4(g), Section 4(h), Section 4(i) and Section 6 hereof
shall at all times be effective. If the Company elects to terminate this
Agreement as provided in this Section, the Company shall provide the
required notice promptly by telephone, telex, or telecopy, confirmed by
letter.
(c) Any termination of this Agreement shall be effective on the date
specified in such notice of termination; provided that such termination
shall not be effective until the close of business on the date of receipt
of such notice by the Agent. If such termination shall occur during a
Pricing Period, any Additional Shares and Average Market Price Shares shall
settle in accordance with the provisions of the second to last paragraph of
Section 3 hereof.
10. Notices. All notices or communications hereunder shall be in writing
and if sent to the Agent shall be mailed, delivered, telexed or telecopied and
confirmed to the Agent at Kidder, Peabody & Co. Incorporated, 10 Hanover Square,
New York, New York 10005, Attn: David C. Worley, 17th Floor, or if sent to the
Company, shall be mailed, delivered, telexed or telecopied and confirmed to the
Company at 9100 East Mineral Circle, Englewood, Colorado 80112, Attn: Treasurer.
Each party to this Agreement may change such address for notices by sending to
the parties to this Agreement written notice of a new address for such purpose.
11. Parties. This Agreement shall inure to the benefit of and be binding
upon the Company and the Agent and their respective successors and the
controlling persons, officers and directors referred to in Section 6 hereof, and
no other person will have any right or obligation hereunder.
12. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New York without regard to
the principles of conflicts of laws.
-11-
<PAGE>
If the foregoing correctly sets forth the understanding between the Company
and the Agent, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company
and the Agent. Alternatively, the execution of this Agreement by the Company
and its acceptance by or on behalf of the Agent may be evidenced by an exchange
of telegraphic or other written communications.
Very truly yours,
Cyprus Amax Minerals Company
By:
-----------------------------------
Title:
--------------------------------
ACCEPTED as of the date first above written
Kidder, Peabody & Co. Incorporated
By:
-----------------------------------
Title:
--------------------------------
-12-
<PAGE>
CERTIFICATE OF INCORPORATION
of
CYPRUS AMAX FINANCE CORPORATION
1. The name of the corporation is:
Cyprus Amax Finance Corporation
2. The address of its registered office in the State of Delaware is 1209
Orange Street, in the City of Wilmington County of New Castle. The name of its
registered agent at such address is the Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is:
To engage in any lawful act or activity for which corporation may be
organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall have
authority to issue is One Thousand (1,000) and the par value of each of such
shares is One Dollar ($1.00) amounting in the aggregate to One Thousand Dollars
($1,000.00).
5. The name and mailing address of each incorporator is as follows:
NAME MAILING ADDRESS
--------------------------- -----------------------------
Greg A. Walker 9100 E. Mineral Circle
Englewood, CO 80112
Kathleen J. Gormley 9100 E. Mineral Circle
Englewood, CO 80112
Sharon J. Fetherhuff 9100 E. Mineral Circle
Englewood, CO 80112
6. The name and mailing address of each person who is to serve as a
director until the first annual meeting of stockholders or until their
respective successors are elected and qualify are as follows:
NAME MAILING ADDRESS
--------------------------- -----------------------------
Milton H. Ward 9100 E. Mineral Circle
Englewood, CO 80112
Gerald J. Malys 9100 E. Mineral Circle
Englewood, CO 80112
Philip C. Wolf 9100 E. Mineral Circle
Englewood, CO 80112
<PAGE>
The powers of the incorporators shall terminate upon the filing of this
Certificate of Incorporation.
7. No Director shall be personally liable to the Corporation or any
stockholder for monetary damages for breach of fiduciary duty as a Director,
except as to liability (i) for any breach of such Director's duty of loyalty to
the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or knowing violation of law, (iii)
for violations of Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the Director derived an improper personal
benefit. If the Delaware General Corporation Law hereafter is amended to
eliminate or limit further the liability of a Director, then, in addition to the
elimination and limitation of liability provided by the preceding sentence, the
liability of each Director of the Corporation shall be eliminated or limited to
the fullest extent provided or permitted by the Delaware General Corporation
Law, as so amended. Any repeal or modification of this Article VI shall not
adversely affect any right or protection of a Director under this Article VI, as
in effect immediately prior to such repeal or modification, with respect to any
liability that would have accrued, but for this Article VI, prior to such repeal
or modification.
8. The Corporation shall indemnify, to the fullest extent permitted by
the laws of the State of Delaware as from time to time may be in effect, any
person against all liability and expense (including attorneys' fees, judgments,
fines, ERISA settlement) incurred by reason of the fact that he is or was a
Director or Officer of the Corporation, or, he is or was serving at the request
of the Corporation as a Director, officer, partner or trustee of, or in any
similar managerial or fiduciary position of, or as an employee or agent of
another corporation, partnership, joint venture, trust, association or other
enterprise, or by reason of any action alleged to have been taken or omitted in
such capacity. Expenses (including attorneys' fees) incurred in defending any
action, suit, or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit, or proceeding to the full extent and
under the circumstances permitted by the laws of the State of Delaware. The
right to indemnification conferred upon such persons by this Article shall be a
contract right. The person who is or was a Director, officer, employee,
fiduciary, or agent of the Corporation against any liability asserted against
and incurred by such person in any such capacity or arising out of such person's
position, whether or not the Corporation would have the power to indemnify
against such liability under the provisions of this Article VII. The
indemnification provided by this Article VII shall not be deemed exclusive of
any other rights to which those indemnified may be entitled under this
Certificate of Incorporation, any By-law, Agreement, vote of stockholders or
disinterested Directors, statute, or otherwise, and shall inure to the benefit
of their heirs, executors, and administrators. The provisions of this Article
VII shall not be deemed to preclude the Corporation from indemnifying other
persons from similar or other expenses and liabilities as the Board of Directors
or the stockholders may determine in a specific instance or by resolution of
general application.
9. The Corporation is to have perpetual existence.
10. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the By-Laws of the Corporation.
Page 2
<PAGE>
11. Elections of Directors need not be by written ballot unless the By-
Laws of the Corporation shall so provide.
Meetings of stockholders may be held within or without the State of
Delaware, as the By-Laws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-Laws of the Corporation.
12. The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
WE, THE UNDERSIGNED, being each of the incorporators herein before named,
for the purpose of forming a Corporation pursuant to the General Corporation Law
of the State of Delaware, to make this certificate, hereby declaring and
certifying that this is our act and deed and the facts herein stated are true,
and accordingly have hereunto set our hands this 3rd day of June, 1994.
------------------------------------
Greg A. Walker
------------------------------------
Kathleen J. Gormley
------------------------------------
Sharon J. Fetherhuff
Page 3
<PAGE>
CYPRUS AMAX FINANCE CORPORATION
By-Laws
I
OFFICES
Section 1. REGISTERED AND OTHER OFFICES.
The registered office of the Corporation in the State of Delaware shall be
in the City of Wilmington, County of New Castle, State of Delaware.
The Corporation shall have offices at such other places both within and
without the State of Delaware as the Board of Directors may from time to time
determine or as the business of the Corporation may require.
II
STOCKHOLDERS
Section 1. ANNUAL MEETING.
The annual meeting of the stockholders for the election of Directors and
for the transaction of such other business as may properly come before the
meeting shall be held on the fourth Friday in May. Each such annual meeting
shall be held at 9100 East Mineral Circle, Englewood, Colorado 80112 at 9:00
a.m.
The meeting may be adjourned from time to time and place to place until
its business is completed.
At an annual meeting of the stockholders, the stockholders shall elect by a
plurality vote the Board of Directors and transact such other business as shall
have been properly brought before the meeting.
Section 2. SPECIAL MEETINGS.
Special meetings of the stockholders, for any purpose or purposes, unless
otherwise prescribed by statute or by the Certificate of Incorporation, may be
called by the President and shall be called by the President or Secretary at the
request in writing of a majority of the Board of Directors, or at the request in
writing of stockholders owning a majority in amount of the entire capital stock
of the Corporation issued and outstanding and entitled to vote. Such request
shall state the purpose or purposes of the proposed meeting. Business
transacted at any special meeting of stockholders shall be limited to the
purposes stated in the notice.
Page 1
<PAGE>
Section 3. STOCKHOLDER ACTION WITHOUT MEETINGS.
Any action required by the General Corporation Law to be taken at any
annual or special meeting of stockholders, or any action which may be taken at
any annual or special meeting of stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
Section 4. NOTICE OF MEETING.
Notice of every meeting of the stockholders shall be given in the manner
prescribed by law. Notice of an adjourned meeting of the stockholders need not
be given unless required by law.
Section 5. QUORUM.
Except as otherwise required by law, the Certificate of Incorporation or
these By-Laws, the holders of a majority of the shares entitled to vote at any
meeting of the stockholders, present in person or by proxy, shall constitute a
quorum and the act of the majority of such quorum, voting as a single class,
shall be deemed the act of the stockholders.
If a quorum shall fail to attend any meeting, the chairman of the meeting
may adjourn the meeting to another place, date or time.
Section 6. QUALIFICATION OF VOTERS.
The Board of Directors (hereinafter sometimes referred to as the "Board")
may fix a day and hour not more than sixty nor less than ten days prior to the
day of holding any meeting of the stockholders at the time as of which the
stockholders entitled to notice of and to vote at such meeting shall be
determined. Only those persons who were holders of record of voting stock at
such time shall be entitled to notice of and to vote at such meeting.
Section 7. PROCEDURE.
The order of business and all other matters of procedure at every meeting
of the stockholders may be determined by the chairman of the meeting.
Page 2
<PAGE>
III
DIRECTORS
Section 1. FUNCTIONS AND DEFINITION.
The business and affairs of the Corporation shall be managed by or under
the direction of the Board of Directors of the Corporation. The use of the
phrase "entire board" herein refers to the total number of Directors which the
Corporation would have if there were no vacancies.
Section 2. QUALIFICATIONS AND NUMBER.
A Director need not be a stockholder, a citizen of the United States, or a
resident of the State of Delaware. The initial Board of Directors shall consist
of not less than three persons. Thereafter the number of Directors constituting
the entire Board shall be at least one. Subject to the foregoing limitation and
except for the first Board of Directors, such number may be fixed from time to
time by action of the stockholders or of the Directors, or, if the number is not
fixed, the number shall be three. The number of Directors may be increased or
decreased by action of the stockholders or of the Directors.
Section 3. ELECTION AND TERM.
The first Board of Directors, unless the members thereof shall have been
named in the Certificate of Incorporation, shall be elected by the incorporator
or incorporators and shall hold office until the first annual meeting of
stockholders and until their successors are elected and qualified or until their
earlier resignation or removal. Any Director may resign at any time upon
written notice to the Corporation. Thereafter Directors who are elected at an
annual meeting of stockholders, and Directors who are elected in the interim to
fill vacancies and newly created Directorships, shall hold office until the next
annual meeting of stockholders and until their successors are elected and
qualified or until their earlier resignation or removal. In the interim between
annual meetings of stockholders or special meetings of stockholders called for
the election of Directors and/or for the removal of one or more Directors and
for the filling of any vacancy in that connection, newly created directorships
and any vacancies in the Board of Directors for cause or without cause, may be
filled by the vote of a majority of the remaining Directors then in office,
although less than a quorum, or by the sole remaining Director.
Section 4. MEETINGS.
Meetings shall be held at such time as the Board shall fix, except that the
first meeting of a newly elected Board shall be held as soon after its election
as the Directors may conveniently assemble. Meetings shall be held at such
place within or without the State of Delaware as shall be fixed by the Board.
Special meetings may be called by or at the direction of the President or
of a majority of the Directors in office.
Page 3
<PAGE>
Section 5. NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER.
No notice shall be required for regular meetings for which the time and
place have been fixed. Written, oral, or any other mode of notice of the time
and place shall be given for special meetings in sufficient time for the
convenient assembly of the Directors thereafter. Notice need not be given to
any Director or to any member of a committee of Directors who submits a written
waiver of notice signed by him or her before it after the time stated therein.
The attendance of any such person, at a meeting shall constitute a waiver of
notice of such meeting, except when he or she attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the Directors need to specified in any written waiver of notice.
Section 6. QUORUM.
Except as may be otherwise provided by law, in the Certificate of
Incorporation or in these By-Laws, the presence of a majority of the entire
Board, or of a majority of all the members of any committee thereof, shall be
necessary and sufficient to constitute a quorum for the transaction of business
at any meeting of the Board, or of such committee, and the act of a majority of
such quorum shall be deemed the act of the Board, or of such committee.
A majority of the Directors present, whether or not a quorum is present,
may adjourn any meeting of the Board to another time and place.
Section 7. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE.
Members of the Board, or of any committee thereof, may participate in a
meeting of such Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other and such participation shall constitute presence in
person at such meeting.
Section 8. ACTION BY WRITTEN CONSENT.
Unless otherwise restricted by the Certificate of Incorporation or these
By-Laws, any action required or permitted to be taken at any meeting of the
Board of Directors or of any committee thereof may be taken without a meeting,
if all members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of Proceedings
of the Board or committee.
Section 9. COMMITTEES.
The Board of Directors may, by resolution passed by a majority of the whole
Board, designate one or more committees, each committee to consist of one or
more of the Directors of the Corporation. The Board may designate one or more
Directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of any member of any such committee or committees, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he, she or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member. Any such committee, to the extent
Page 4
<PAGE>
provided in the resolution of the Board, shall have and may exercise the powers
and authority of the Board of Directors in the management of the business and
affairs of the Corporation with the exception of any authority the delegation of
which is prohibited by Section 141 of the General Corporation Law, and may
authorize the seal of the Corporation to be affixed to all papers which may
require it.
Section 10. REMOVAL OF DIRECTORS.
Except as may otherwise be provided by the General Corporation Law, any
Director or the entire Board of Directors may be removed, with or without cause,
by the holders of a majority of the shares then entitled to vote at an election
of Directors.
IV
OFFICERS
Section 1. NUMBER.
The officers of the Corporation shall be appointed or elected by the Board
of Directors. The officers shall be a President, who shall be a Director and
shall be the Chief Executive Officer of the Corporation, and shall have such
other duties as the Board prescribes, such number of Vice Presidents as the
Board may from time to time determine, a Secretary, a Treasurer, and a
Controller. Any person may hold two or more offices simultaneously.
Section 2. ADDITIONAL OFFICERS.
The Board may appoint such other officers, agents and employees as it shall
deem appropriate.
Section 3. TERMS OF OFFICE.
All officers, agents and employees of the Corporation shall hold their
respective offices or positions at the pleasure of the Board of Directors and
may be removed at any time by the Board of Directors with or without cause.
Section 4. DUTIES.
The officers, agents and employees shall perform the duties and exercise
the powers usually incident to the offices or positions held by them
respectively, and/or such other duties and powers as may be assigned to them
from time to time by the Board of Directors or the President.
Page 5
<PAGE>
V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
Section 1. GENERAL
Subject to the other sections of this Article V, the Corporation, shall
indemnify, to the fullest extent permitted by, and in the manner permissible
under, the laws of the State of Delaware in effect on the date hereof and as
amended from time to time, any person who was or is threatened to be made, a
party to any threatened, pending or completed action, suit, or proceeding,
whether criminal, civil, administrative, or investigative, by reason of the fact
that he, is or was a director or officer of the Corporation, or, is or was
serving at the request of the Corporation as a Director, officer, employee or
agent of another corporation, partnership, joint venture, trust, association, or
other enterprise, against expenses (including attorneys' fees), judgments,
fines, ERISA excise taxes or penalties, and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, Suit or
Proceeding, including any action, Suit or Proceeding by or in the right of the
Company (a "Proceeding"). The Corporation shall advance all reasonable expenses
incurred by or on behalf of any such person in connection with any Proceeding
within ten days after the receipt by the Corporation of a statement or
statements from such person requesting such advance or advances from time to
time, whether prior to or after final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the expenses incurred by such
person and, if such person is an officer or Director of the Corporation, shall
include or preceded or accompanied by an undertaking by or on behalf of such
person to repay any expenses advanced if it shall ultimately be determined that
such person is not entitled to be indemnified against such expenses. Costs,
charges or expenses of investigating or defending proceedings for which
indemnity shall be sought hereunder may be incurred without the Corporation's
consent; provided that no settlement of any such Proceeding may be made without
the Corporation's consent, which consent shall not be unreasonably withheld.
Section 2. DETERMINATION OF RIGHT TO INDEMNIFICATION
(a) Any indemnification requested by any person under Section 1 hereof
shall be made no later than forty-five (45) days after receipt of the
written request of such person, unless a determination is made within
said forty-five (45) day period (i) by the Board of Directors of the
Corporation by a majority vote of a quorum thereof consisting of
Directors who are not parties to such Proceedings, or (ii) in the
event such a quorum is not obtainable, at the election of the
Corporation, by Independent Legal Counsel in a written opinion, that
such person is not entitled to indemnification hereunder.
(b) Notwithstanding a determination under Section 3(a) above that any
person is not entitled to indemnification with respect to any specific
proceeding, such person shall have the right to apply to any court of
competent jurisdiction for the purpose of enforcing such person's
right to indemnification pursuant to these By-Laws. Neither the
failure of the Corporation (including its Board of Directors or
Independent Legal Counsel) to have made a determination prior to the
commencement of such action that such person is entitled to
indemnification hereunder, nor an actual determination by the
Corporation (including its Board of Directors or Independent Legal
Counsel) that such person is not entitled to indemnification
hereunder, shall be a defense to the
Page 6
<PAGE>
action or create any presumption that such person is not entitled to
indemnification hereunder.
(c) The Corporation shall indemnify any person against all expenses
incurred in connection with any hearing or proceeding under this
Section 2 if such person prevails on the merits or otherwise in such
hearing or Proceeding.
Section 3. SUBROGATION
In the event of payment under these By-Laws, the indemnifying party or
parties shall be subrogated to the extent of such payment to all of the rights
of recovery of the papers required and shall do everything that may be necessary
to secure such rights, including the execution of such documents necessary to
enable the indemnifying party or parties to effectively bring suit to enforce
such rights.
Section 4. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS
(a) In making a determination with respect to entitlement to
indemnification hereunder, the person or persons or entity making such
determination shall presume that such person is entitled to
indemnification under this Agreement, and the Corporation shall have
the burden of proof to overcome that presumption in connection with
the making by any person, persons or entity of any determination
contrary to that presumption.
(b) The termination of any proceeding or of any claim, issue or matter
therein, by judgment, order, settlement or conviction, or upon a plea
of nolo contendere or its equivalent, shall not (except as otherwise
---------------
expressly provided in these By-Laws) of itself adversely affect the
right of any person to act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of
the Corporation or, with respect to any criminal proceeding, that such
person had reasonable cause to believe that his conduct was unlawful.
Section 5. EXCEPTION TO RIGHT OF INDEMNIFICATION OR ADVANCEMENT OF EXPENSES
Notwithstanding any other provision of these By-Laws, no person shall be
entitled to indemnification or advancement of expenses under these By-Laws with
respect to any Proceeding brought by such person, unless the bringing of such
Proceeding or making of such claim shall have been approved by the Board of
Directors.
Section 6. CONTRACT
The foregoing provision of this Article V shall be deemed to be a contract
between the Corporation and each Director and officer who serves in such
capacity at any time while this By-Law is in effect, and any repeal or
modification thereof shall not affect any rights or obligations then existing
with respect to any state of facts then or theretofore existing or any action,
suit or Proceeding theretofore or thereafter brought based in whole in part upon
any such state of facts.
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<PAGE>
The foregoing rights of indemnification shall not be deemed exclusive of
any other rights to which any Director or officer may be entitled apart from the
provisions of this Article V.
Section 7. SURVIVING CORPORATION
The Board of Directors may provide by resolution that references to "the
Corporation" in this Article V shall include, in addition to this Corporation,
all constituent corporations absorbed in a merger with this Corporation so that
any person who was a Director or Officer of such a constituent Corporation or is
or was serving at the request of such constituent Corporation as a Director,
employee, or agent of another corporation, partnership, joint venture, trust,
association, or other entity shall stand in the same position under the
provisions of this Article V with respect to this Corporation as he would if he
had served this Corporation in the same capacity or is or was so serving such
other entity at the request of this Corporation, as the case may be.
Section 8. INUREMENT
The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article V shall continue as to a person who has ceased to be a
Director or officer and shall inure to the benefit of the heirs, executors, and
administrators of such person.
Section 9. EMPLOYEES AND AGENTS
To the same extent as it may do for a Director or officer, the Corporation
may indemnify and advance expenses to a person who is not and was not a Director
or officer of the Corporation but who is or was an employee or agent of the
Corporation.
VI
CERTIFICATE OF STOCK
Section 1. CERTIFICATE.
Every holder of stock in the Corporation shall be entitled to have a
certificate, signed by, or in the name of the Corporation by, the chairman or
vice-chairman of the Board of Directors, or the President or a Vice-President
and the Treasurer or any Assistant Treasurer, or the Secretary or an Assistant
Secretary of the Corporation, certifying the number of shares owned by him or
her in the Corporation.
Any of or all of the signatures on the certificate may be facsimile. In
case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he or she were such
officer, transfer agent or registrar at the date of issue.
The Board of Directors may direct a new certificate or certificates to be
issued in place of any certificate or certificates theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the Certificate of Stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in
Page 8
<PAGE>
such manner as it shall require and/or to give the Corporation bond in such some
as it may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
Section 2. TRANSFER OF STOCK.
Upon surrender to the Corporation or the transfer agent of the Corporation
of a certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignation or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
VII
SEAL
Section 1. SEAL.
The Corporate Seal shall bear the name of the Corporation, the year of its
organization and the words "Corporate Seal, Delaware". The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
VIII
AMENDMENTS
Section 1. AMENDMENT OF BY-LAWS.
Subject to the provisions of the Certificate of Incorporation, these
By-Laws may be altered, amended or repealed at any regular meeting of the
stockholders (or at any special meeting thereof duly called for that purpose) by
a majority vote of the shares represented and entitled to vote at such meeting;
provided that in the notice of such special meeting notice of such purpose shall
be given. Subject to the laws of the State of Delaware, the Certificate of
Incorporation and these By-Laws, the Board of Directors may by majority vote of
those present at any meeting at which a quorum is present amend these By-Laws,
or enact such other By-Laws as in their judgment may be advisable for the
regulation of the conduct of the affairs of the Corporation.
Page 9
<PAGE>
- --------------------------------------------------------------------------------
CYPRUS AMAX MINERALS COMPANY
TO
TEXAS COMMERCE TRUST COMPANY, NATIONAL ASSOCIATION
Trustee
_______________
INDENTURE
Dated as of __________, 1994
_______________
Senior Securities
- --------------------------------------------------------------------------------
<PAGE>
Cyprus Amax Minerals Company
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
<S> <C>
(S) 310(a)(1) . . . . . . . . . . . . . . . . 6.9
(a)(2) . . . . . . . . . . . . . . . . 6.9
(a)(3) . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . 6.8
6.10
(S) 311(a) . . . . . . . . . . . . . . . . 6.13
(b) . . . . . . . . . . . . . . . . 6.13
(S) 312(a) . . . . . . . . . . . . . . . . 7.1
7.2
(b) . . . . . . . . . . . . . . . . 7.2
(c) . . . . . . . . . . . . . . . . 7.2
(S) 313(a) . . . . . . . . . . . . . . . . 7.3
(b) . . . . . . . . . . . . . . . . 7.3
(c) . . . . . . . . . . . . . . . . 7.3
(d) . . . . . . . . . . . . . . . . 7.3
(S) 314(a) . . . . . . . . . . . . . . . . 7.4
(a)(4) . . . . . . . . . . . . . . . . 1.1
10.4
(b) . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . 1.2
(c)(2) . . . . . . . . . . . . . . . . 1.2
(c)(3) . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . 1.2
(S) 315(a) . . . . . . . . . . . . . . . . 6.1
(b) . . . . . . . . . . . . . . . . 6.2
(c) . . . . . . . . . . . . . . . . 6.1
(d) . . . . . . . . . . . . . . . . 6.1
(e) . . . . . . . . . . . . . . . . 5.14
(S) 316(a) . . . . . . . . . . . . . . . . 1.1
(a)(1)(A). . . . . . . . . . . . . . . . 5.2
5.12
(a)(1)(B). . . . . . . . . . . . . . . . 5.13
(a)(2) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . 5.8
(c) . . . . . . . . . . . . . . . . 1.4
(S) 317(a)(1) . . . . . . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . . . . . 10.3
(S) 318(a) . . . . . . . . . . . . . . . . 1.7
</TABLE>
- --------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
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<S> <C>
RECITALS OF THE COMPANY................................................... 1
ARTICLE I Definitions and Other Provisions
of General Application....................................... 1
Section 1.1 Definitions............................................ 1
Section 1.2 Compliance Certificates and Opinions................... 9
Section 1.3 Form of Documents Delivered to Trustee................. 10
Section 1.4 Acts of Holders; Record Dates.......................... 11
Section 1.5 Notices, Etc., to Trustee and Company.................. 14
Section 1.6 Notice to Holders; Waiver.............................. 14
Section 1.7 Conflict with Trust Indenture Act...................... 15
Section 1.8 Effect of Headings and Table of Contents............... 16
Section 1.9 Successors and Assigns................................. 16
Section 1.10 Separability Clause.................................... 16
Section 1.11 Benefits of Indenture.................................. 16
Section 1.12 Governing Law.......................................... 16
Section 1.13 Legal Holidays......................................... 16
ARTICLE II Security Forms............................................... 17
Section 2.1 Forms Generally........................................ 17
Section 2.2 Form of Face of Security............................... 17
Section 2.3 Form of Reverse of Security............................ 19
Section 2.4 Form of Legend for Global Securities................... 24
Section 2.5 Form of Trustee's Certificate of
Authentication......................................... 24
ARTICLE III The Securities............................................... 24
Section 3.1 Amount Unlimited; Issuable in Series................... 24
Section 3.2 Denominations.......................................... 27
Section 3.3 Execution, Authentication, Delivery and
Dating................................................. 27
Section 3.4 Temporary Securities................................... 30
Section 3.5 Registration, Registration of Transfer
and Exchange........................................... 32
Section 3.6 Mutilated, Destroyed, Lost and Stolen
Securities............................................. 35
Section 3.7 Payment of Interest; Interest Rights
Preserved.............................................. 36
Section 3.8 Persons Deemed Owners.................................. 38
Section 3.9 Cancellation........................................... 38
Section 3.10 Computation of Interest................................ 39
ARTICLE IV Satisfaction and Discharge................................... 39
Section 4.1 Satisfaction and Discharge of Indenture................ 39
Section 4.2 Application of Trust Money............................. 40
</TABLE>
(i)
<PAGE>
<TABLE>
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<S> <C>
ARTICLE V Remedies..................................................... 41
Section 5.1 Events of Default...................................... 41
Section 5.2 Acceleration of Maturity; Rescission and
Annulment.............................................. 43
Section 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee................................. 44
Section 5.4 Trustee May File Proofs of Claim....................... 44
Section 5.5 Trustee May Enforce Claims Without
Possession of Securities or Coupons.................... 45
Section 5.6 Application of Money Collected......................... 45
Section 5.7 Limitation on Suits.................................... 46
Section 5.8 Unconditional Right of Holders to
Receive Principal, Premium and Interest................ 46
Section 5.9 Restoration of Rights and Remedies..................... 47
Section 5.10 Rights and Remedies Cumulative......................... 47
Section 5.11 Delay or Omission Not Waiver........................... 47
Section 5.12 Control by Holders..................................... 47
Section 5.13 Waiver of Past Defaults................................ 48
Section 5.14 Undertaking for Costs.................................. 48
Section 5.15 Waiver of Usury, Stay or Extension Laws................ 48
ARTICLE VI The Trustee.................................................. 49
Section 6.1 Certain Duties and Responsibilities.................... 49
Section 6.2 Notice of Defaults..................................... 49
Section 6.3 Certain Rights of Trustee.............................. 49
Section 6.4 Not Responsible for Recitals or Issuance
of Securities.......................................... 50
Section 6.5 May Hold Securities.................................... 50
Section 6.6 Money Held in Trust.................................... 51
Section 6.7 Compensation and Reimbursement......................... 51
Section 6.8 Disqualification; Conflicting Interests................ 51
Section 6.9 Corporate Trustee Required; Eligibility................ 52
Section 6.10 Resignation and Removal; Appointment of
Successor.............................................. 52
Section 6.11 Acceptance of Appointment by Successor................. 54
Section 6.12 Merger, Conversion, Consolidation or
Succession to Business................................. 55
Section 6.13 Preferential Collection of Claims
Against Company........................................ 55
Section 6.14 Appointment of Authenticating Agent.................... 55
ARTICLE VII Holders' Lists and Reports by Trustee and
Company...................................................... 57
Section 7.1 Company to Furnish Trustee Names and
Addresses of Holders................................... 57
Section 7.2 Preservation of Information;
Communications to Holders.............................. 58
Section 7.3 Reports by Trustee..................................... 58
Section 7.4 Reports by Company..................................... 58
</TABLE>
(ii)
<PAGE>
<TABLE>
<CAPTION>
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<S> <C>
ARTICLE VIII Consolidation, Merger, Conveyance, Transfer
or Lease...................................................... 59
Section 8.1 Company May Consolidate, Etc., Only on
Certain Terms........................................... 59
Section 8.2 Successor Substituted................................... 60
ARTICLE IX Supplemental Indentures....................................... 60
Section 9.1 Supplemental Indentures Without Consent of
Holders................................................. 60
Section 9.2 Supplemental Indentures with Consent of
Holders................................................. 61
Section 9.3 Execution of Supplemental Indentures.................... 62
Section 9.4 Effect of Supplemental Indentures....................... 63
Section 9.5 Conformity with Trust Indenture Act..................... 63
Section 9.6 Reference in Securities to Supplemental
Indentures.............................................. 63
ARTICLE X Covenants..................................................... 63
Section 10.1 Payment of Principal, Premiums and
Interest................................................ 63
Section 10.2 Maintenance of Office or Agency......................... 64
Section 10.3 Money for Securities Payments to Be Held
in Trust................................................ 65
Section 10.4 Statement by Officers as to Default..................... 67
Section 10.5 Existence............................................... 67
Section 10.6 Maintenance of Properties............................... 67
Section 10.7 Payment of Taxes and Other Claims....................... 67
Section 10.8 Restrictions on Secured Debt............................ 68
Section 10.9 Restriction on Sales and Leasebacks..................... 70
Section 10.10 Waiver of Certain Covenants............................. 71
ARTICLE XI Redemption of Securities...................................... 72
Section 11.1 Applicability of Article................................ 72
Section 11.2 Election to Redeem; Notice to Trustee................... 72
Section 11.3 Selection by Trustee of Securities to be
Redeemed................................................ 72
Section 11.4 Notice of Redemption.................................... 73
Section 11.5 Deposit of Redemption Price............................. 74
Section 11.6 Securities Payable on Redemption Date................... 74
Section 11.7 Securities Redeemed in Part............................. 75
Section 11.8 Purchase of Securities.................................. 75
ARTICLE XII Sinking Funds................................................. 76
Section 12.1 Applicability of Article................................ 76
Section 12.2 Satisfaction of Sinking Fund Payments
With Securities......................................... 76
Section 12.3 Redemption of Securities for Sinking
Fund.................................................... 76
</TABLE>
(iii)
<PAGE>
<TABLE>
<CAPTION>
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<S> <C>
ARTICLE XIII Defeasance and Covenant Defeasance............................ 77
Section 13.1 Company's Option to Effect Defeasance or
Covenant Defeasance..................................... 77
Section 13.2 Defeasance and Discharge................................ 77
Section 13.3 Covenant Defeasance..................................... 78
Section 13.4 Conditions to Defeasance or Covenant
Defeasance.............................................. 78
Section 13.5 Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions................................ 80
Section 13.6 Reinstatement........................................... 81
Exhibit A ........................................................ A-1
Exhibit B ........................................................ B-1
</TABLE>
(iv)
<PAGE>
INDENTURE, dated as of __________, 1994, between Cyprus Amax Minerals
Company, a corporation duly organized and existing under the laws of the State
of Delaware (herein called the "Company"), having its principal office at 9100
East Mineral Circle, Englewood, Colorado 80112, and Texas Commerce Trust
Company, National Association, 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
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
This Indenture is subject to the provisions of the Trust Indenture Act
and the rules and regulations of the Commission promulgated thereunder that are
required to be part of this Indenture and, to the extent applicable, shall be
governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE I
Definitions and Other Provisions
of General Application
Section 1.1 Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the singular;
(b) 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;
(c) 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
<PAGE>
or permitted hereunder shall mean such accounting principles as are generally
accepted at the date of such computation;
(d) the words "Article" and "Section" refer to an Article and
Section, respectively, of this Indenture; and
(e) 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 Articles VI, X and XIII, are defined
in those Articles.
"Act," when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable and at any date as of which the amount thereof is
to be determined, the total net amount of rent required to be paid by such
Person under such lease during the remaining primary term thereof, discounted
from the respective due dates thereof to such date at the rate of 10-1/8% per
annum. The net amount of rent required to be paid under any such lease for any
such period shall be the aggregate amount of 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 after giving appropriate credit for lease payments payable to such
Person by any sublessee. In the case of any lease which is terminable by the
lessee upon the payment of a penalty, such net amount shall also include the
amount of such penalty, but 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 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form established pursuant
to Section 2.1 which is payable to bearer, including, without limitation, unless
the context otherwise indicates, a Security in temporary or permanent global
bearer form.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
-2-
<PAGE>
"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.
"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, from time
to time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, either of its
Co-Chairmen of the Board, its Vice 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 liabilities other than deferred income taxes,
liabilities resulting from any charge in connection with the adoption of
Statement of Financial Accounting Standards (SFAS) 106 "Employers' Accounting
for Postretirement Benefits Other Than Pensions," and Funded Debt and (ii) all
goodwill, trade names, trademarks, patents, organization expenses 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. Mine development costs and other similar
-3-
<PAGE>
assets shall be not considered to be intangibles for this purpose.
"Corporate Trust Office" means the principal office of the Trustee in
Dallas, Texas at which at any particular time its corporate trust business shall
be administered.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Covenant Defeasance" has the meaning specified in Section 13.3.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Defeasance" has the meaning specified in Section 14.2.
"Defeasible Series" has the meaning specified in Section 13.1.
"Depositary" means, with respect to the Securities of any series
issuable in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act as
Depositary for such Securities as contemplated by Section 3.1.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any statute successor thereto.
"Funded Debt" means (i) all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the determination is
made or having a maturity of 12 months or less but by its terms being renewable
or extendable beyond 12 months from such date at the option of the borrower and
(ii) rental obligations payable more than 12 months from such date under leases
which are capitalized in accordance with generally accepted accounting
principles (such rental obligations to be included as Funded Debt at the amount
so capitalized and to be included for the purposes of the definition of
Consolidated Net Tangible Assets both as an asset and as Funded Debt at the
amount so capitalized).
"Global Security" means a Security that evidences all or part of the
Securities of any series and is authenticated and delivered to the Depositary
for such Securities or a nominee thereof. Global Securities may be issued in
either registered or bearer form and in either temporary or permanent form.
Permanent Global Securities will be issued in definitive form.
"Holder", when used with respect to any Security, means in the case of
a Registered Security the Person in whose name the Security is registered in the
Security Register and in the case of a Bearer Security the bearer thereof and,
when used with respect to any coupon, means the bearer thereof.
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<PAGE>
"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,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated in Section 3.1.
"interest," when used with respect to the 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 otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 5.1(d).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, either of its Co-Chairmen of the Board, a Vice Chairman of the Board,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee. One of the officers signing an Officers' Certificate given pursuant to
Section 10.4 shall be the principal executive, financial or accounting officer
of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, 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 5.2.
"Outstanding," when used with respect to Securities, mean, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
------
(1) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
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<PAGE>
(2) 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 and any coupons appertaining thereto; provided that, if such
--------
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee
has been made;
(3) Securities as to which Defeasance has been effected
pursuant to Section 13.2; and
(4) Securities which have been paid pursuant to Section 3.6 or
in exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (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 acceleration of the Maturity
thereof to such date pursuant to Section 5.2, (B) the principal amount of a
Security denominated in one or more foreign currencies or currency units shall
be the U.S. dollar equivalent, determined in the manner provided as contemplated
by Section 3.1 on the date of original issuance of such Security, of the
principal amount (or, in the case of an Original Issue Discount Security, the
U.S. dollar equivalent on the date of original issuance of such Security of the
amount determined as provided in Clause (A) above) of such Security, and (C)
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.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premiums or interest on any Securities on behalf of the
Company.
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<PAGE>
"Person" means any individual, corporation, partnership, joint
venture, 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 any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any mine, mill, converting plant,
manufacturing plant, or other substantial facility owned at the date hereof or
hereafter acquired by the Company or any Restricted Subsidiary of the Company
which is located within the present 50 States of the United States of America
and the gross book value (including related land and improvements thereon, any
minerals or mineral rights and all machinery and equipment included therein
without deduction of any depreciation reserves) of which on the date as of which
the determination is being made exceeds 2-1/2% of Consolidated Net Tangible
Assets, other than (i) any property which in the opinion of the Board of
Directors of the Company is not of material importance to the total business
conducted by the Company as an entirety or (ii) any portion of a particular
property which is similarly found not to be of material importance to the use or
operation of such property.
"Realty Subsidiary" means a Subsidiary of the Company engaged
primarily in the development and sale or financing of real property.
"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.
"Registered Security" means any Security in the form established
pursuant to Article II which is registered in the Security Register.
"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 10.1.
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<PAGE>
"Responsible Officer," when used with respect to the Trustee, means
the chairman or any co-chairman or vice-chairman of the board of directors, the
chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" means a Subsidiary of the Company (i)
substantially all the property of which is located, or substantially all the
business of which is carried on, within the present 50 States of the United
States of America and (ii) which owns a Principal Property, but does not include
a Realty Subsidiary.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest 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.
"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.
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<PAGE>
"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 each Trustee with respect to
Securities of that series.
"U.S. Government Obligations" has the meaning specified in Section
13.4.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
Section 1.2 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 such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
provided for in Section 10.4) shall include
(a) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) A statement that, in the opinion of 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
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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<PAGE>
Section 1.3 Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company or any subsidiary of
the Company stating that the information with respect to such factual matters is
in the possession of the Company or any subsidiary of the Company, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give, or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.4 Acts of Holders; Record Dates.
-----------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted 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 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 6.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a
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<PAGE>
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.
The ownership of Securities shall be proved by the Security Register.
The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Trustee to be satisfactory.
The Trustee and the Company may assume that such ownership of any Bearer
Security continues until (1) another certificate bearing a later date issued
in respect of the same Bearer Security is produced, (2) such Bearer Security
is produced to the Trustee by some other Person, (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding. The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may also be
proved in any other manner which the Trustee deems sufficient.
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.
The Company may, in the circumstances permitted by the Trust Indenture
Act, set any day as the record date for the purpose of determining the Holders
of Outstanding Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given or taken by Holders of
Securities of such series. With regard to any record date set pursuant to this
paragraph, the Holders of Outstanding Securities of the relevant series on such
record date (or their duly appointed agents), and only such Persons, shall be
entitled to give or take the relevant action, whether or not such Holders remain
Holders after such record date. With regard to any action that may be given or
taken hereunder only by Holders of a requisite principal amount of Outstanding
Securities of any series (or their duly appointed agents) and for which a record
date is set pursuant to this paragraph, the Company may, at its option, set an
expiration date after which no such action purported to be given or taken by any
Holder shall be effective hereunder unless given or taken on or prior to such
expiration date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly appointed agents).
On or prior to any expiration date set pursuant to this paragraph, the Company
may, on one or more occasions at its option, extend such date to any later date.
Nothing in this paragraph shall prevent any Holder (or any duly appointed agent
thereof) from giving or taking, after any such expiration date, any action
identical to, or, at any time, contrary to or different from, the action or
purported action to which such expiration date relates, in which event the
Company may set a record date in respect thereof pursuant to this paragraph.
Nothing in this paragraph shall be construed to
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<PAGE>
render ineffective any action taken at any time by the Holders (or their duly
appointed agents) of the requisite principal amount of Outstanding Securities of
the relevant series on the date such action is so taken. Notwithstanding the
foregoing or the Trust Indenture Act, the Company shall not set a record date
for, and the provisions of this paragraph shall not apply with respect to, any
notice, declaration or direction referred to in the next paragraph.
Upon receipt by the Trustee from any Holder of Securities of a
particular series of (i) any written notice of default or breach referred to in
Section 5.1(d) or 5.1(e) with respect to Securities of such series, if such
default or breach has occurred and is continuing and the Trustee shall not have
given such written notice to the Company, (ii) any declaration of acceleration
referred to in Section 5.2, if an Event of Default with respect to Securities of
such series has occurred and is continuing and the Trustee shall not have given
such a declaration to the Company, or (iii) any direction referred to in Section
5.12 with respect to Securities of such series, if the Trustee shall not have
taken the action specified in such direction, then a record date shall
automatically and without any action by the Company or the Trustee be set for
determining the Holders of Outstanding Securities of such series entitled to
join in such notice, declaration or direction, which record date shall be the
close of business on the tenth day following the day on which the Trustee
receives such notice, declaration or direction. Promptly after such receipt by
the Trustee, and in any case not later than the fifth day thereafter, the
Trustee shall notify the Company and the Holders of Outstanding Securities of
such series of any such record date so fixed. The Holders of Outstanding
Securities of such series on such record date (or their duly appointed agents),
and only such Persons, shall be entitled to join in such notice, declaration or
direction, whether or not such Holders remain Holders after such record date;
provided that, unless such notice, declaration or direction shall have become
- --------
effective by virtue of Holders of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly appointed agents)
having joined therein on or prior to the 90th day after such record date, such
notice, declaration or direction shall automatically and without any action by
any Person be cancelled and of no further effect. Nothing in this paragraph
shall be construed to prevent a Holder (or a duly appointed agent thereof) from
giving, before or after the expiration of such 90-day period, a notice,
declaration or direction contrary to or different from, or, after the expiration
of such period, identical to, the notice, declaration or direction to which such
record date relates, in which event a new record date in respect thereof shall
be set pursuant to this paragraph. Nothing in this paragraph shall be construed
to render ineffective any notice, declaration or direction of the type referred
to in this paragraph given at any time to the Trustee and the Company by Holders
(or their duly appointed agents) of the requisite principal amount of
Outstanding
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<PAGE>
Securities of the relevant series on the date such notice, declaration or
direction is so given.
Without limiting the foregoing, a Holder entitled hereunder to give or
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 different part of such principal amount.
Section 1.5 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,
(a) 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 Department, or
(b) 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 or at any other address previously furnished in
writing to the Trustee by the Company.
Section 1.6 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) (i) to holders of registered Secutities 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
(if any), and not earlier than the earliest date (if any), 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 and (ii) to Holders of Bearer Securities if
published in an Authorized Newspaper in the City of New York and London or
other capital city in Western Europe and in such other city or cities as may
be specified in such Bearer Securities on a Business Day at least twice, the
first such publication to be not earlier than the earliest date (if any), and
not later than the latest date (if any), prescribed for the giving of 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.
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<PAGE>
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders of Registered Securities by mail, then such notification shall be made
with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
In any case in which notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered Security, shall
affect the sufficiency of such notice with respect to other Holders of
Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein.
In case by reason of the suspension of any Authorized Newspaper or
Authorized Newspapers or by reason of any other cause it shall be impracticable
to publish any notice to Holders of Bearer Securities as provided above, then
such notification to Holders of Bearer Securities as shall be made with the
approval of the Trustee for such Securities shall constitute sufficient notice
to such Holders for every purpose hereunder. Neither the failure to give notice
by publication to Holders of Bearer Securities as provided above, nor any defect
in any notice so published, shall affect the sufficiency of any notice to
Holders of Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 1.7 Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
Section 1.8 Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.9 Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 1.10 Separability Clause.
-------------------
In case any provision in this Indenture or 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 1.11 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 and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 1.12 Governing Law.
-------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
Section 1.13 Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business
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<PAGE>
Day at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities, other than a provision of the Securities of any
series which specifically states that such provision shall apply in lieu of this
Section), payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue for the period from and after
--------
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be.
ARTICLE II
Security Forms
Section 2.1 Forms Generally.
---------------
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons appertaining thereto
shall be in substantially the form set forth in this Article, or in such other
form as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities or coupons
appertaining thereto. If temporary Securities of any series are issued in
global form as permitted by Section 3.4, the form thereof shall be established
as provided in the proceeding sentence. If the form of Securities of any
series or coupons appertaining thereto 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 3.3 for the authentication and delivery of such
Securities (or any such temporary global security) or coupons appertaining
thereto.
Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities shall have interest coupons appertaining thereto attached, [HRT].
The definitive Securities and coupons appertaining thereto, if any,shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Section 2.2 Form of Face of Registered Security.
-----------------------------------
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
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<PAGE>
CYPRUS AMAX MINERALS COMPANY
No. ___________ $______________
Cyprus Amax Minerals Company, a corporation duly organized and
existing under the laws of Delaware (herein called the "Company," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to
_________________________________________, or registered assigns, the principal
sum of _______________________ Dollars on ___________________________________
[if the Security is to bear interest prior to Maturity, insert -- , and to pay
-------------------------------------------------------------
interest thereon from _______________ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
__________________________ and __________________ in each year, commencing
_________________, at the rate of ___% per annum, until the principal hereof is
paid or made available for payment [if applicable, insert -- , and at the rate
---------------------
of ___% per annum on any overdue principal and premium and on any overdue
installment of interest]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the __________ or __________ (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert --
-----------------------------------------------------------------
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ___% per annum which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand.
Any such interest on any overdue principal that is not so paid on demand shall
bear interest at the rate of ___% per annum which shall accrue from the date of
such demand for payment to the date payment of such
-16-
<PAGE>
interest has been made or duly provided for, and such interest shall also be
payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
--------------
insert -- any such] interest on this Security will be made at the office or
- ------
agency of the Company maintained for that purpose in ___________________, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts [if applicable,
-------------
insert-- ; provided, however, that at the option of the Company payment of
- ------ -------- -------
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: __________________________
CYPRUS AMAX MINERALS COMPANY
By:__________________________
Attest:
______________________________
Section 2.3 Form of Reverse Registered of Security.
--------------------------------------
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of ____________, 1994 (herein called the
"Indenture"), between the Company and Texas Commerce Trust Company, National
Association, as Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the
-17-
<PAGE>
Trustee and the Holders of the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof [if
--
applicable, insert -- , limited in aggregate principal amount to $___________].
- ------------------
[If applicable, insert -- [The Securities are not otherwise subject to
---------------------
redemption prior to maturity and no sinking fund is provided for the
Securities.]
[If applicable, insert -- The Securities of this series are subject to
---------------------
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
---------------------
(1) on _________________ in any year commencing with the year _________ and
ending with the year ___________ through operation of the sinking fund for this
series at a Redemption Price equal to 100% of the principal amount, and (2)] at
any time [if applicable, insert -- on or after __________, 19__], as a whole or
---------------------
in part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): If redeemed [if applicable,
--------------
insert -- on or before _______________, ___%, and if redeemed] during the 12-
- ------
month period beginning ______________ of the years indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
- ---- ----- ---- -----
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
---------------------
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
---------------------
redemption upon not less than 30 days' notice by mail, (1) on ____________ in
any year commencing with the year _________ and ending with the year ______
through operation of the sinking fund for this series at the Redemption Prices
for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time [if
--
applicable, insert -- on or after ________________], as a whole or in part, at
- ------------------
the election of the Company, at the Redemption Prices for redemption
-18-
<PAGE>
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If redeemed during the
12-month period beginning __________ of the years indicated,
<TABLE>
<CAPTION>
Redemption Price Redemption Price For
For Redemption Redemption Otherwise
Through Operation of Than Through Operation
Year the Sinking Fund of the Sinking Fund
- ---- -------------------- ----------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company
---------------------
may not, prior to __________________, redeem any Securities of this series as
contemplated by [if applicable, insert -- Clause (2) of] the preceding paragraph
---------------------
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than ____% per annum.]
[If applicable, insert -- The sinking fund for this series provides
---------------------
for the redemption on _____________________ in each year beginning with the year
_______ and ending with the year ________ of [if applicable, insert -- not less
---------------------
than $_________ ("mandatory sinking fund") and not more than] $_________
aggregate principal amount of Securities of this series. Securities of this
series acquired or redeemed by the Company otherwise than through [if
--
applicable, insert -- mandatory] sinking fund payments may be credited against
- ------------------
subsequent [if applicable, insert -- mandatory] sinking fund payments otherwise
---------------------
required to be made [if applicable, insert -- in the inverse order in which they
---------------------
become due].]
[If the Security is subject to redemption of any kind, insert -- In
------------------------------------------------------------
the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- The Indenture contains provisions for
---------------------
defeasance at any time of (1) the entire indebtedness of this Security or (2)
certain restrictive
-19-
<PAGE>
covenants and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert --
------------------------------------------------------------------
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
--------------------------------------------------------------
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
----------------------------------
amount. Upon payment (i) of the amount of principal so declared due and payable
- ------
and (ii) of interest on any overdue principal and overdue interest all of the
Company's obligations in respect of the payment of the principal of and
interest, if any, on the Securities of this series shall terminate.]
The Indenture 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 Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
-20-
<PAGE>
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or any premium or
interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of [$1,000] and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration or
transfer, the Company, the Trustee and any agent of the Company of the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
-21-
<PAGE>
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Section 2.4 Form of Legend for Global Securities.
------------------------------------
Every Global Security authenticated and delivered hereunder shall bear
a legend in substantially the following form:
This Security is a Global Security within the meaning
of the Indenture hereinafter referred to and is registered
in the name of a Depositary or a nominee thereof. This
Security may not be transferred to, or registered or
exchanged for Securities registered in the name of, any
Person other than the Depositary or a nominee thereof and
no such transfer may be registered, except in the limited
circumstances described in the Indenture. Every Security
authenticated and delivered upon registration of transfer of,
or in exchange for or in lieu of, this Security shall be a
Global Security subject to the foregoing, except in such
limited circumstances.
Section 2.5 Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
_______________________________
As Trustee
By_____________________________
Authorized Signatory
ARTICLE III
The Securities
Section 3.1 Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
-22-
<PAGE>
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 3.3,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from the Securities of any other
series);
(b) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7 and except for any
Securities which, pursuant to Section 3.3, are deemed never to have been
authenticated and delivered hereunder);
(c) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether any Securities of
the series are to be issuable initially in temporary global form and whether
any Securities of the series are to be issuable in permanent global form or
otherwise, with or without coupons appertaining thereto and, if so, whether
beneficial owners of interests in any such permanent Global Security may
exchange such interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in Section 3.5, and
the Depositary for any Global Security or Securities;
(d) the manner in which, or the Person to whom, any interest
on any Bearer Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature and the extent to which, or the manner in which, any interest
payable on a temporary Global Security on any Interest Payment Date will be
paid if other than in the manner provided in Section 3.5;
(e) the date or dates on which the principal of the Securities
of the series is payable;
(f) the rate or rates 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 any such interest shall be payable
and the Regular Record Date for any interest payable on any Interest Payment
Date;
(g) the place or places where the principal of and any premium
and interest on Securities of the series shall be payable;
(h) 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;
(i) 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;
-23-
<PAGE>
(j) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series shall be
issuable;
(k) the currency, currencies or currency units in which payments
of the principal of and any premium and interest on any Securities of the series
shall be payable if other than the currency of the United States of America and
the manner of determining the equivalent thereof in the currency of the United
States of America for purposes of the definition of "Outstanding" in Section
1.1;
(l) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with reference to an
index, the manner in which such amounts shall be determined;
(m) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Company or a
Holder thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency, currencies
or currency units in which payment of the principal of and any premium and
interest on Securities of such series as to which such election is made shall be
payable, and the periods within which and the terms and conditions upon which
such election is to be made;
(n) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.2;
(o) the applicability, nonapplicability, or variation, of
Sections 10.8 and 10.9 with respect to the Securities of such series;
(p) if applicable, that the Securities of the series shall be
subject to either or both of Defeasance or Covenant Defeasance as provided in
Article XIII; provided that no series of Securities that is convertible into
Common Stock pursuant to Section 3.1(q) or convertible into or exchangeable for
any other securities pursuant to Section 3.1(r) shall be subject to Defeasance
pursuant to Section 13.2;
(q) if and as applicable, that the Securities of the series
shall be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary or Depositaries for such Global
Security or Global Securities and any circumstances other than those set forth
in Section 3.5 in which any such Global Security may be transferred to, and
registered and exchanged for Securities registered in the name of, a Person
other than the Depositary for such Global Security
-24-
<PAGE>
or a nominee thereof and in which any such transfer may be registered;
(r) the terms and conditions, if any, pursuant to which the
Securities are convertible into Common Stock of the Company;
(s) the terms and conditions, if any, pursuant to which the
Securities are convertible into or exchangeable for any other securities; and
(t) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.1(e)).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 3.3) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 3.2 Denominations.
-------------
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 3.1. In the absence of any
such specified denomination 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 3.3 Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, either of its Co-Chairmen of the Board, its Vice Chairman
of the Board, its President or one of its Vice Presidents, under its corporate
seal reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile. Coupons shall bear the facsimile signature of the
Chairman of the Board, President, Treasurer or any Vice President of the
Company.
Securities and coupons appertaining thereto 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
-25-
<PAGE>
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, together
with any coupons appertaining thereto, executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities as in this Indenture
provided and not otherwise; provided, however, that, in connection with its
sale, during the "restricted period" (as defined in Section
1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations), no Bearer
Security shall be mailed or otherwise delivered to any location in the United
States; and provided, further, that a Bearer Security may (other than a
temporary Global Security in bearer form delivered as provided in Section 3.5)
be delivered outside the United States in connection with its original
issuance and only if the Person entitled to receive such Bearer Security shall
have furnished a certificate in the form set forth in Exhibit A to this
Indenture, or in such other form of certificate as shall contain information
then required by federal income tax laws and, if applicable, federal
securities laws, dated no earlier than the Certification Date. If any Security
shall be presented by a permanent global Bearer Security, then, for purposes
of this Section and Section 3.5, the notation of a beneficial owner's interest
therein upon original issuance of such Security or upon exchange of a portion
of a temporary Global Security shall be deemed to be delivery in connection
with sale, during the "restricted period" (as defined in Section
1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations) of such
beneficial owner's interest in such permanent Global Security. Except as
permitted by Section 3.6, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then matured have
been detached and cancelled. If 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 2.1 and 3.1, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon, 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 2.1, 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 3.1, 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 3.1 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 Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
-26-
<PAGE>
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date of
issuance of the first Bearer Security of such series to be issued.
No Security or coupons appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Security, or the security to which such coupon
appertains a certificate of authentication substantially in the form provided
for herein or to the Security to which such coupon appertains executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 3.9, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 3.4 Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued in registered form or, if authorized, in bearer form with one or
more coupons appertaining thereto or without coupons, 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. In the case of any series issuable as Bearer
Securities, such temporary Securities may be in global form. A temporary
Bearer Security shall be delivered only in compliance with the conditions set
forth in Section 3.3.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs),
if temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor provided,
however that no Bearer Security shall be issued in exchange for a temporary
Registered Security; and provided, further, that a definitive Bearer Security
(including interests in a permanent Global Security) shall be delivered in
exchange for a temporary Bearer Security only in compliance with the
conditions set forth in Section 3.3.
Any temporary global Bearer Security and any permanent global Bearer
Security shall, unless otherwise provided therein, be delivered to the London
office of a depositary or common depositary (the "Common Depositary") for the
benefit of [Euroclear and CEDEL S.A.] for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Bearer Security of a series (the "Exchange Date"), the Company shall deliver to
the Trustee definitive Securities of that series in aggregate principal amount
equal to the principal amount of such temporary global Bearer Security, executed
by the Company. On or after the Exchange Date such temporary global Bearer
Security shall be surrendered by the Common Depositary to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities of that series without charge and the Trustee
shall authenticate and deliver, in exchange for each portion of such temporary
global Bearer Security, a like aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such temporary global Bearer Security to be exchanged; provided
however, that unless otherwise specified in such temporary global Bearer
Security, no such definitive Securities shall be delivered unless, upon such
presentation by the Common Depositary, such temporary global Bearer Security is
accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by [Euroclear] as to the portion of such temporary global Bearer Security
held for its account then to be exchanged and a certificate dated the Exchange
Date or a subsequent date and signed by [CEDEL S.A.] as to the portion of such
temporary global Bearer Security held for its account then to be exchanged, each
in the form set forth in Exhibit B to this Indenture. The definitive Securities
to be delivered in exchange for any such temporary global Bearer Security
shall be in bearer form, registered form, permanent global bearer form or
permanent global registered form, or any combination thereof, as specified as
contemplated by Section 3.1, and if any combination thereof is so specified,
as requested by the beneficial owner thereof.
Unless otherwise specified in the temporary global Bearer Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Bearer Security shall be exchanged on or after the Exchange Date for
definitive Securities (and where the form of the definitive Securities is not
specified by the Holder for an interest in a permanent Global Security) of the
same series and of like tenor upon delivery by such beneficial owner to
[Euroclear or CEDEL S.A.], as the case may be, of a certificate in the form set
forth in Exhibit A to this Indenture dated no earlier than the Certification
Date, copies of which certificate shall be available from the offices of
[Euroclear and CEDEL S.A.], the Trustee, any Authenticating Agent appointed for
such series of Securities and each Paying Agent. Unless otherwise specified in
such temporary global Bearer Security, any exchange shall be made free of charge
to the beneficial owners of such temporary global Bearer Security, except that a
Person receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the office of [Euroclear or CEDEL
S.A.]. Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary global Bearer Security shall be delivered only outside
the United States.
All Outstanding temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and delivered
hereunder, except that, unless otherwise specified as contemplated by Section
3.1, interest payable on a temporary global Bearer Security on an Interest
Payment Date for Securities of such series shall be payable to [Euroclear and
CEDEL S.A.] on such Interest Payment Date upon delivery by [Euroclear and CEDEL
S.A.] to the Trustee of a certificate or certificates in the form set forth in
Exhibit B to this Indenture, for credit without further interest on or after
such Interest Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary global Bearer Security on such Interest
Payment Date and who have each delivered to [Euroclear or CEDEL S.A.], as the
case may be a certificate in the form set forth in Exhibit A to this indenture.
Any interest so received by [Euroclear and CEDEL S.A.] and not paid as herein
provided shall be returned to the Trustee immediately prior to the expiration of
two years after such Interest Payment Date in order to be repaid to the Company
in accordance with Section 10.3.
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Section 3.5 Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering
Registered Securities and transfers of Registered 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 and tenor.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Registered Securities to be exchanged at such office or
agency. Whenever any Registered Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is entitled to
receive.
A Holder of Registered Securities cannot have Bearer Securities issued
in exchange for such Registered Securities.
At the option of the Holder of Bearer Securities of any series, such
Bearer Securities may be exchanged for Registered Securities of the same series
of any authorized denominations and of a like aggregate principal amount and
tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in
default thereto appertaining. If the Holder of a Bearer Security is unable to
produce any such unmatured coupon or coupons or matured coupon or coupons in
default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an amount equal
to the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if
there is furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to any Paying Agent any such missing coupon in
respect of which such a payment shall have been made such Holder shall be
entitled to receive from the Company the amount of such payment; provided,
however, that, except as otherwise provided in Section 10.2, interest
represented by coupons shall be payable only upon presentation and surrender
of those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and like tenor after the close of business at such office
or agency on (i) any Regular Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
in respect of the Registered Security issued in exchange for such Bearer
Security but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration
of transfer or for exchange (if so required by the Company or the Trustee)
shall 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 Registered Securities, but the Company or Security Registrar 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 Registered Securities, other than exchanges pursuant to Section
3.4, 9.6 or 11.7 not involving any transfer.
The Company shall not be required (1) to issue, register the transfer
of or exchange Securities of any series
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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 11.3 and ending at the close of business (A) if
Securities of the series are issuable only as Registered Securities, the day
of the mailing of the relevant notice of redemption and (B) if Securities of
the series are issuable as Bearer Securities, the day of the first publication
of the relevant notice of redemption, except that if Securities of the series
are also issuable as Registered Securities and there is no publication, the
mailing of relevant notice of redemption, or (2) 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 or (3) to
exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption.
Notwithstanding any other provision in this Indenture, no Global
Registered Security may be transferred to, or registered or exchanged for
Registered Securities registered in the name of, any Person other than the
Depositary for such Registered Global Security or any nominee thereof, and no
such transfer may be registered, unless (1) such Depositary (A) notifies the
Company that it is unwilling or unable to continue as Depositary for such
Global Security or (B) ceases to be a clearing agency registered under the
Exchange Act, (2) the Company executes and delivers to the Trustee a Company
Order that such Registered Global Security shall be so transferable,
registrable and exchangeable, and such transfers shall be registrable, (3)
there shall have occurred and be continuing an Event of Default with respect
to the Securities evidenced by such Registered Global Security or (4) there
shall exist such other circumstances, if any, as have been specified for this
purpose as contemplated by Section 3.1. Notwithstanding any other provision in
this Indenture, a Registered Global Security to which the restriction set
forth in the preceding sentence shall have ceased to apply may be transferred
only to, and may be registered and exchanged for Securities registered only in
the name or names of, such Person or Persons as the Depositary for such
Registered Global Security shall have directed and no transfer thereof other
than such a transfer may be registered.
Every Registered Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security to which the restriction set forth in the first sentence of the
preceding paragraph shall apply, whether pursuant to this Section, Section
3.4, 3.6, 9.6 or 11.7 or otherwise, shall be authenticated and delivered in
the form of, and shall be, a Registered Global Security.
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding with coupons
corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupons appertaining thereto 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
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Company or the Trustee that such Security or coupon has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security or in exchange for the security to which a destroyed, lost or stolen
coupon appertains (with all appurtenant coupons not destroyed, lost or stolen),
a new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding with coupons corresponding
to the coupons, if any, appertaining to such destroyed, lost or stolen
Security or to the Security to which such destroyed, lost or stolen coupon
appertains.
In case any such mutilated, destroyed, lost or stolen Security 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; provided, however, that
the principal of and any premium and interest on Bearer Securities shall,
except as otherwise provided in Section 10.2, be payable only at an office or
agency located outside the United States.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
of the destroyed, lost or stolen coupons 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 or coupons.
Section 3.7 Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 3.1 with
respect to any series of Registered 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.
Interest on any Bearer Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment date shall be paid to the
bearer of the applicable coupon appertaining to such Bearer Security. Unless
otherwise provided with respect to the Securities of any series, payment of
interest may be made at the option of the Company (i) in the case of Registered
Securities, by check mailed or delivered to the address of any Person entitled
thereto as such address shall appear in the Security Register, or (ii) in the
case of Bearer Securities, except as otherwise provided in Section 10.2, upon
presentation and surrender of the appropriate coupon appertaining thereto at an
office or agency of the Company in a Place of Payment located outside the United
States or by transfer to an account maintained by the payee with a bank located
outside the United States.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (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 (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities
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of such series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each Registered Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money 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 Registered Securities of such
series at his address as it appears in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following Clause (b).
(b) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 3.8 Persons Deemed Owners.
---------------------
Prior to due presentment of a Registered Security for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of
receiving payment of principal of and any premium and
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(subject to Section 3.7) any interest on such Registered Security and for all
other purposes whatsoever, whether or not such Registered Security be overdue,
and neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
Section 3.9 Cancellation.
------------
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it.
All Registered Securities and matured coupons so delivered shall be
promptly cancelled by the Trustee. All Bearer Securities and unmatured coupons
so delivered shall be held by the Trustee and, upon instruction by a Company
Order, shall be cancelled or held for reissuance. Bearer Securities and
unmatured coupons held for reissuance may be reissued only in replacement of
mutilated, lost, stolen or destroyed Bearer Securities of the same series and
like tenor or the related coupons pursuant to Section 3.6. All Bearer
Securities and unmatured coupons held by the Trustee pending such cancellation
of reissuance shall be deemed to be delivered to the Trustee for all purposes
of this Indenture and the Securities. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
In the case of any temporary global Bearer Security, which shall be
disposed of if the entire aggregate principal amount of the Securities
represented thereby has been exchanged, the certificate of disposition shall
state that all certificates required pursuant to Section 3.4 hereof,
substantially in the form of Exhibit B hereto, to be given by [Euroclear or
CEDEL S.A.], have been duly presented to the Trustee for such Securities by
[Euroclear or CEDEL S.A.] as the case may be. Permanent Global Securities shall
not be disposed of until exchanged in full for definitive Securities or until
payment thereon is made in full.
Section 3.10 Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE IV
Satisfaction and Discharge
Section 4.1 Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either all Securities of such series theretofore
authenticated and delivered and all coupons, if any, appertaining thereto
(other than (i) coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section 3.5, (ii)
Securities and coupons which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.6, (iii) coupons
appertaining to Bearer Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as provided in
Section 11.6, and (iv) Securities and coupons 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 10.3 have been delivered to the Trustee for cancellation;
or
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segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 10.3) have been delivered
to the Trustee for cancellation; or
(B) all such Securities 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 deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
an amount sufficient to pay and discharge the entire indebtedness on such
Securities and coupons appertaining thereto, if any, not theretofore delivered
to the Trustee for cancellation, for principal and any premium and interest to
the date of such deposit (in the case of Securities and coupons appertaining
thereto, if any, which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under 6.7, the obligations of the
Trustee to any Authenticating Agent under Section 6.14 and, if money shall have
been deposited with the Trustee pursuant to subclause (B) of Clause (a) of this
Section, the obligations of the Trustee under Section 4.2 and the last paragraph
of Section 10.3 shall survive.
Section 4.2 Application of Trust Money.
--------------------------
Subject to provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust and
applied by it, in accordance with the provisions of the Securities, the coupons
and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as
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the Trustee may determine, to the Persons entitled thereto, of the principal and
any premium and interest for whose payment such money has been deposited with
the Trustee.
ARTICLE V
Remedies
Section 5.1 Events of Default.
-----------------
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) 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
(b) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(d) 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 10% 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
(e) the Company shall fail to pay any Indebtedness in excess of
[$20,000,000] owing by the Company, or any interest or premium thereon, when due
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace period,
if any, specified in the agreement or instrument relating to such Indebtedness,
or the Company shall fail to perform any term, covenant or agreement on its part
to be performed under any agreement or instrument evidencing or
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securing or relating to any such Indebtedness, if the effect of such failure in
either case is that the maturity of such Indebtedness is duly accelerated (for
this purpose "Indebtedness" shall have the same meaning as the term "Funded
Debt" but the term Indebtedness shall apply irrespective of the maturity of such
indebtedness or obligation) (the Trustee shall not be deemed to have knowledge
of a default under this subsection (e) unless it shall have actual knowledge
thereof); provided, however, that, subject to the provisions of Sections 6.1 and
-------- -------
6.2, the Trustee shall not be deemed to have knowledge of such failure to pay
unless either (A) a Responsible Officer of the Trustee shall have actual
knowledge of such failure to pay 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 thereunder; or
(f) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(g) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any applicable Federal
or State law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or of
any substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action; or
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(h) any other Event of Default provided with respect to
Securities of that series.
Section 5.2 Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default 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.
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
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities and coupons
appertaining thereto, if any, of that series,
(B) the principal of (and premium, if any, on) any
Securities and coupons appertaining thereto, if any, of that series which have
become due otherwise than by such declaration of acceleration and any interest
thereon at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefor in such
Securities or coupons appertaining thereto, if any, 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
(b) all Events of Default with respect to Securities and coupons
appertaining thereto, if any, of that series, other than the non-payment of
the principal of Securities of that series which have become due
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solely by such declaration of acceleration, have been cured or waived as
provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
- -------
The Company covenants that if
(a) default is made in the payment of any interest on any
Security and any coupons appertaining thereto when such interest becomes due
and payable and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities and coupons, the whole amount then due and
payable on such Securities and coupons for principal and any premium and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and premium 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 an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
Section 5.4 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 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
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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 6.7.
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; provided,
--------
however, that the Trustee may, on behalf of the Holders, vote for the election
- -------
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
Section 5.5 Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities Or Coupons.
- ---------------------
All rights of action and claims under this Indenture or the Securities
or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities or coupons in respect of which such judgment has been recovered.
Section 5.6 Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities or coupons and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.7; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities and
coupons in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on
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such Securities and coupons for principal and any premium and
interest, respectively.
Section 5.7 Limitation on Suits.
-------------------
No Holder of any Security of any series 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
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of that
series;
(b) 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;
(c) 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;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.8 Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest.
- --------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupons shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(subject to Section 3.7) interest on such Security or such coupon on the
respective Stated Maturities expressed in such Security or coupons (or, in the
case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
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Section 5.9 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 5.10 Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 3.6, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities
or coupons 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 5.12 Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
--------
(a) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
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Section 5.13 Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(a) in the payment of the principal of or any premium or
interest on any Security of such series, or
(b) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 5.14 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 Company.
Section 5.15 Waiver of Usury, 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 usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power although no such law had been enacted.
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ARTICLE VI
The Trustee
Section 6.1 Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, 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. 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 6.2 Notice of Defaults.
------------------
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified in
- -------- -------
Section 5.1(d) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
Section 6.3 Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall 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
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action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) 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, coupon, 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; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys 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.
Section 6.4 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.
Section 6.5 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
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pledgee of Securities and coupons and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
Section 6.6 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 6.7 Compensation and Reimbursement.
------------------------------
The Company agrees
(a) 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);
(b) except as otherwise expressly provided herein, to promptly
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
(c) 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. The
Trustee may have counsel separate from counsel to the Company, and the Company
shall pay all reasonable fees and expenses of such counsel.
Section 6.8 Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 6.9 Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be one or more Trustees hereunder with
respect to the Securities of each series, at least
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one of 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 said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 6.10 Resignation and Removal; Appointment of Successor.
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 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.
The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
If at any time:
(a) the Trustee shall fail to comply with Section 6.8 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
(b) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company or by any
such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged as bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
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then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, 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 6.11, 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.
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 1.6. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor.
--------------------------------------
In the 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
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such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
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.
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
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such rights, powers and trusts referred to in paragraph (a) and (b) of this
Section, as the case may be.
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 6.12 Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business.
- --------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13 Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 6.14 Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 3.6, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under
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the laws of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal 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 to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers, and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The 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, subject to the
provisions of Section 6.7.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may
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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 designated therein
referred to in the within-mentioned Indenture.
_______________________________
As Trustee
By______________________________
As Authenticating Agent
By______________________________
Authorized Officer
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
Section 7.1 Company to Furnish Trustee Names and Addresses of
-------------------------------------------------
Holders.
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The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date, a list for each series of Securities, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Securities
of such series as of the Regular Record Date, as the case may be, 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;
excluding from any such list names and addresses received by the Trustee in its
- ---------
capacity as Security Registrar.
Section 7.2 Preservation of Information; Communications to Holders.
------------------------------------------------------
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 7.1 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 7.1 upon receipt of a new list so furnished.
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The rights of the 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.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
Section 7.3 Reports by Trustee.
------------------
The Trustee shall transmit to Holders such of Registered Securities,
as the names and addresses of such Holders appear in the Security Register and
to such Holders of Securities as have, within the two years preceding such
transmissions, filed their names and addresses with the Trustee for that
purpose. Reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.
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 7.4 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 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1 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 or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
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(a) 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 or
trust, shall be organized and validly existing under the laws of the United
States of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and delivered
to the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of and 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;
(b) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or any
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would become an Event
of Default, shall have happened and be continuing;
(c) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would become
subject to a mortgage, pledge, lien, security interest or other encumbrance
which would not be permitted by this Indenture, the Company or such successor
Person as the case may be, shall take such steps as shall be necessary
effectively to secure the Securities equally and ratably with (or prior to) all
indebtedness secured thereby; and
(d) 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 8.2 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 8.1, 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
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been named as the Company herein, and thereafter, except in the case of a lease,
the predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities and coupons.
ARTICLE IX
Supplemental Indentures
Section 9.1 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:
(a) 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
(b) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities and any coupons appertaining
thereto, (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
(c) to add any additional Events of Default; or
(d) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of principal
of or any premium or interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities, to permit
Bearer Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of Securities
in uncertificated form
(e) 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 (A) shall neither (i) apply to any Security
and any coupons appertaining thereto of any series created prior to the
execution of such supplemental indenture and entitled to the benefit of such
provision nor (ii) modify the rights of the Holder of any such Security and any
coupons appertaining thereto with respect to such provision or (B) shall
become effective only when there is no such Security and any coupons
appertaining thereto Outstanding; or
(f) to secure the Securities and any coupon appertaining thereto
pursuant to the requirements of Article X or otherwise; or
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(g) to establish the form or terms of Securities and any
coupon appertaining thereto of any series as permitted by Sections 2.1 and
3.1; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11; or
(i) 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
--------
(i) shall not adversely affect the interests of the Holders of Securities of any
series in any material respect.
Section 9.2 Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provision to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall,
-------- -------
without the consent of the Holder of each Outstanding Security affected
thereby,
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or 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 5.2,
or change any Place of Payment where, or the coin or currency in which, any
Security or any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date), or
(b) 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
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defaults hereunder and their consequences) provided for in this Indenture, or
(c) modify any of the provisions of this Section, Section 5.13
or Section 10.10, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected thereby,
provided, however, that this clause shall not be deemed to require the consent
- -------- -------
of any Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 10.10, or the deletion of this
proviso, in accordance with the requirements of Sections 6.11 and 9.1(h).
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 9.3 Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 9.4 Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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Section 9.5 Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 9.6 Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series and coupons
appertaining thereto.
ARTICLE X
Covenants
Section 10.1 Payment of Principal, Premiums and Interest.
-------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 3.1 with respect to any series
of Securities, any interest due on and payable with respect to Bearer
Securities on or before Maturity shall be payable only upon presentation and
surrender of the several coupons for such interest installments, as are
evidenced thereby as they severally mature.
Section 10.2 Maintenance of Office or Agency.
-------------------------------
If Securities of a series are issuable only as Registered Securities
the Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. If Securities of a series are issuable as
Bearer Securities, the Company will maintain (A) in The Borough of Manhattan,
the City of New York, an office or agency where any Registered Securities of
that series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange for Registered
Securities, where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and where Bearer
Securities of that series and related coupons may be presented or surrendered
for payment in the circumstances described in the following paragraph (and not
otherwise), (B) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States,
an office or agency where Bearer Securities of that series and related coupons
may be presented and surrendered for payment; provided, however, that if the
Securities of that series are listed on the International Stock Exchange of
the United Kingdom and the Republic of Ireland Limited, the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and
such stock exchange shall so require, the Company will maintain a Paying Agent
for the Securities of that series in London, Luxembourg or any other required
city located outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange, and (C) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
located outside the United States an office or agency where any Registered
Securities of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange and where
notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may
be made or served at the Corporate Trust Office of the Trustee, except that
Bearer Securities of that series and the related coupons may be presented and
surrendered for payment at the office of any Paying Agent for such series
located outside the United States, and the Company hereby appoints the Trustee
as its agent to receive all such presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States, nor shall any payments be
made in respect of Bearer Securities or coupons appertaining thereto pursuant to
the presentation to the Company or its designated Paying Agents within the
United States; provided, however, that, if the Securities of a series are
denominated and payable in Dollars, payment of principal of and any premium and
interest on any Bearer Security shall be made at the office of the Company's
Paying Agent in The Borough of Manhattan, The City of New York, if (but only if)
payment in Dollars of the full amount of such principal, premium or interest, as
the case may be, at all offices or agencies outside the United States maintained
for the purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions. The
Company may also from time to time designate one or more other offices or
agencies where the Securities of one or
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more series may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that no such
-------- -------
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
Section 10.3 Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities and any coupons appertaining thereto, it
will, on or before each due date of the principal of or any premium or
interest on any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal and any premium and interest so becoming due until such sums shall
be paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any coupons appertaining thereto, it will, prior to
each due date of the principal of or any premium or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to pay such
amount, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
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.
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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 or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due or 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 and any coupon
appertaining thereto shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
-------- -------
Trustee or such Paying Agent before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a Authorized
Newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City
of New York, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
Section 10.4 Statement by Officers as to Default.
-----------------------------------
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions or 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.
The Company will deliver to the Trustee, forthwith upon becoming aware
of any default or Event of Default in the performance of any covenant, agreement
or condition contained in this Indenture, an Officers' Certificate specifying
with particularity such default or Event of Default.
Section 10.5 Existence.
---------
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
-------- -------
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
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Section 10.6 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 and not disadvantageous in any material respect to
the Holders.
Section 10.7 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 10.8 Restrictions on Secured Debt.
----------------------------
Subject to Section 3.1(n), the Company will not itself, and will not
permit any Restricted Subsidiary to, incur, issue, assume, or guarantee any
loans, whether or not evidenced by negotiable instruments or securities, or
any notes, bonds, debentures, coupons or other similar evidences of
indebtedness for money borrowed (loans and notes, bonds, debentures, coupons
or other similar evidences of indebtedness for money borrowed being hereafter
in this Section 10.8 called "Debt"), secured after the date hereof by pledge
of, or mortgage or lien on, any Principal Property of the Company or any
Restricted Subsidiary or any shares of Capital Stock of or Debt of any
Restricted Subsidiary (mortgages, pledges and liens being hereinafter in this
Section 10.8 called "Mortgage" or "Mortgages"), without effectively providing
that the Securities (together with, if the Company shall so determine, any
other Debt of the Company or such Restricted Subsidiary then existing or
thereafter created which is not subordinate to the Securities) 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, unless
after giving effect thereto, the aggregate amount of all such secured Debt
plus all
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Attributable Debt of the Company and its Restricted Subsidiaries with respect to
sale and leaseback transactions to which Section 10.9 is applicable would not
exceed 10% of Consolidated Net Tangible Assets; provided, however, that this
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Section 10.8 shall not apply to, and there shall be excluded from secured Debt
in any computation under this Section 10.8, Debt secured by:
(a) Mortgages on property of, or on any shares of Capital Stock
of or Debt of, any corporation existing at the date hereof or at the time such
corporation becomes a Restricted Subsidiary;
(b) Mortgages in favor of the Company or any Restricted
Subsidiary;
(c) Mortgages in favor of any governmental body to secure
progress, advance or other payment pursuant to any contract or provision of any
statute;
(d) Mortgages on property or assets, shares of Capital Stock or
Debt existing at the time of acquisition thereof (including acquisition through
merger or consolidation) or to secure the payment of all or any part of the
purchase price thereof or construction or development thereof or to secure any
Debt incurred prior to, at the time of, or within 180 days after the later of
the acquisition of such property or assets, shares of Capital Stock or Debt, or
the completion of construction or development, for the purpose of financing all
or any part of the purchase price thereof or construction or development
thereof;
(e) 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 or
construction or development of 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, includible (in whole or in part) 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;
(f) Mortgages created in connection with a project financed
with, and created to secure, a Nonrecourse Obligation. For this purpose,
"Nonrecourse Obligation" shall mean indebtedness or lease payment obligations
substantially related to (i) the construction or acquisition of assets not
currently owned as of December 31, [1992] by the Company or any of its
Restricted Subsidiaries or (ii) the financing of a project involving the
development or expansion of properties of the Company or any of its Restricted
Subsidiaries, as to which the obligee with respect to such indebtedness or
obligation has no recourse to the general corporate funds of the Company or any
of its Restricted Subsidiaries or any assets of the Company or any
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of its Restricted Subsidiaries other than (i) the assets which were acquired
with the proceeds of such transaction or the project financed with the proceeds
of such transaction or other assets comprising part of the project of which such
acquired assets are a part (and funds generated by such assets or project) and
(ii) the stock of any company or the partnership interests in any partnership
the only assets of which are assets included within the immediately preceding
clause (i) except pursuant to a covenant to pay to such obligee or to the
obligor of such indebtedness or obligation an amount equal to all or a portion
of the amount of any dividends received from such obligor within the previous 12
months; or
(g) Any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any Mortgage
referred to in the foregoing clauses (a) to (f), inclusive; provided, however,
-------- -------
that such extension, renewal or replacement Mortgage shall be limited to all or
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, however, that the sale or other transfer of the following
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shall not be deemed to create secured Debt: (i) minerals in place for a period
of time until, or in an amount such that, the purchaser will realize therefrom a
specified amount of money (however determined) or a specified amount of such
minerals, or (ii) any other interest in property of the character commonly
referred to as a "production payment".
Section 10.9 Restriction on Sales and Leasebacks.
-----------------------------------
Subject to Section 3.1(n), the Company will not itself, and will not
permit any Restricted Subsidiary to, enter into any transaction after the date
hereof 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 Restricted Subsidiary of any Principal Property
which has been or is to be sold or transferred by the Company or such Restricted
Subsidiary to such bank, insurance company, lender or investor, or to any person
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 secured Debt to which Section 10.8 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 10.9, Attributable Debt with respect to any sale and leaseback
transaction if:
(a) the lease in such sale and leaseback transaction is for a
period, including renewal rights, of not in excess of three years, or
(b) the Company or a Restricted Subsidiary, within 180 days
after the sale or transfer shall have been made by the Company or by a
Restricted 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
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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 of the Company) to (a) 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 Restricted Subsidiary; provided, however, that the amount to be
-------- -------
applied to the retirement of such Funded Debt of the Company or a Restricted
Subsidiary shall be reduced by (x) the principal amount of any Securities (or
other notes or debentures constituting such 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
Restricted Subsidiary within 180 days after such sale; and provided, however,
-------- -------
that, notwithstanding the foregoing, no retirement referred to in this clause
(a) may be effected by a payment at maturity or pursuant to any mandatory
sinking fund payment or any mandatory prepayment provision, or (b) the purchase
of other property which will constitute Principal Property having a fair market
value, in the opinion of the Board of Directors of the Company, at least equal
to the fair market value of the Principal Property leased in such sale and
leaseback transaction, or
(c) such sale and leaseback transaction is entered into prior
to, at the time of, or within 180 days after the later of the acquisition of the
Principal Property or the completion of construction thereon, or
(d) 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 acquisition or construction of 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, includible (in
whole or in part) 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
(e) the lease payment obligation is created in connection with
a project financed with, and such obligation constitutes, a Nonrecourse
Obligation as defined in Section 10.8(f), or
(f) such sale and leaseback transaction is entered into between
the Company and a Restricted Subsidiary or between Restricted Subsidiaries.
Section 10.10 Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in
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Sections 10.6 to 10.9, 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 any Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
ARTICLE XI
Redemption of Securities
Section 11.1 Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any series)
in accordance with this Article.
Section 11.2 Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by 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 11.3 Selection by Trustee of Securities to be Redeemed.
-------------------------------------------------
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, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal
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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 less than 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 and specified tenor not
previously called for redemption in accordance with the preceding sentence.
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 11.4 Notice of Redemption.
--------------------
Notice of redemption shall be given in the manner provided in
Section 1.6, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Securities of any series
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,
(d) 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,
(e) the place or places where such Securities, together in the
case of Bearer Securities with all coupons appertaining thereto, are to be
surrendered for payment of the Redemption Price,
(f) that the redemption is for a sinking fund, if such is the
case
(g) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be accompanied
by all coupons appertaining thereto maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be deducted
from the Redemption Price, or security or indemnity satisfactory to the Company,
the Trustee and any Paying Agent is furnished, and
(h) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on such Redemption Date pursuant to Section 3.5 or otherwise, the
last date, as determined by the Company, on which such exchanges may be made.
A notice of redemption as contemplated by Section 1.6 need not
identify particular Registered Securities to be redeemed. Notice of
redemption of Securities to be redeemed at the election of the Company shall
be given by the Company or, at
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the Company's request, by the Trustee in the name and at the expense of the
Company and shall be irrevocable.
Section 11.5 Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 11.6 Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for
such interest appertaining to any Bearer Securities so to be redeemed, except
to the extent provided below, shall be redeemed. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
coupons appertaining thereto, if any, maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that, unless
-------- -------
otherwise specified as contemplated by Section 3.1, installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable
to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.7 and provided further,
that all payments on Bearer Securities shall be made only in the manner
provided in Section 10.2 for payments on Bearer Securities.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons appertaining thereto maturing after the
Redemption Date, such Security may be paid after deducting from the Redemption
Price an amount equal to the face amount of all such missing coupons
appertaining thereto, or the surrender of such missing coupon or coupons
appertaining thereto may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by coupons appertaining
thereto shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 10.2) and, unless
otherwise specified as contemplated by Section 3.1, only upon presentation and
surrender of those coupons appertaining thereto.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 11.7 Securities Redeemed in Part.
---------------------------
Any Registered Security which is to be redeemed only in part shall
be surrendered at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Registered Security without service charge, a new Security or Securities
of the same series and of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
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Section 11.8. Purchase of Securities.
Unless otherwise specified as contemplated by Section 3.1, the Company
and any Affiliate of the Company may at any time purchase or otherwise acquire
Securities or coupons appertaining thereto in the open market or by private
agreement; provided that purchases or other acquisitions of Bearer Securities or
coupons appertaining thereto by the Company or any Affiliate of the Company may
be made only outside the United States, and payments therefor may be made only
upon surrender of such Bearer Securities or coupons appertaining thereto at a
location outside the United States and only in the manner provided for payments
on Bearer Securities in Section 10.2. Such acquisition shall not operate as or
be deemed for any purpose to be a redemption of the indebtedness represented by
such Securities or coupons appertaining thereto. Any Securities or coupons
appertaining thereto purchased or acquired by the Company may be delivered to
the Trustee and, upon such delivery, the indebtedness represented thereby shall
be deemed to be satisfied. Section 3.9 shall apply to all Securities and
coupons so delivered.
ARTICLE XII
Sinking Funds
Section 12.1 Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." 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 12.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 12.2 Satisfaction of Sinking Fund Payments With Securities.
-----------------------------------------------------
The Company (a) may deliver Outstanding Securities of a series (other
than any previously called for redemption), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (b) 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 12.3 Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 12.2 and will also deliver to the Trustee any Securities to
be so
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delivered. 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 11.3 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.
ARTICLE XIII
Defeasance and Covenant Defeasance
Section 13.1 Company's Option to Effect Defeasance or Covenant
-------------------------------------------------
Defeasance.
- ----------
The Company may elect, at its option by Board Resolution at any time,
to have either Section 13.2 or Section 13.3 applied to the Outstanding
Securities of any series designated pursuant to Section 3.1 as being defeasible
pursuant to this Article XIII (hereinafter called a "Defeasible Series"), upon
compliance with the conditions set forth below in this Article XIII provided
that Section 13.2 shall not apply to any series of Securities that is
convertible into Common Stock pursuant to Section 3.1(q) or convertible into or
exchangeable for any other securities pursuant to Section 3.1(r).
Section 13.2 Defeasance and Discharge.
------------------------
Upon the Company's exercise of the option provided in Section 13.1 to
have this Section 13.2 applied to the Outstanding Securities of any Defeasible
Series and subject to the proviso to Section 13.1, the Company shall be deemed
to have been discharged from its obligations with respect to the Outstanding
Securities of such series as provided in this Section on and after the date the
conditions set forth in Section 13.4 are satisfied (hereinafter called
"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 the Securities of such series and this Indenture insofar as
the Securities of such series are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), subject
to the following which shall survive until otherwise terminated or discharged
hereunder: (1) the right of Holders of Securities of such series to receive,
solely from the trust fund described in
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Section 13.4 and as more fully set forth in such Section, payments in respect of
the principal of and any premium and interest on such Securities of such series
when payments are due, (2) the Company's obligations with respect to the
Securities of such series under Sections 3.4, 3.5, 3.6, 10.2 and 10.3, (3) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (4)
this Article XIII. Subject to compliance with this Article XIII, the Company
may exercise its option provided in Section 13.1 to have this Section 13.2
applied to the Outstanding Securities of any Defeasible Series notwithstanding
the prior exercise of its option provided in Section 13.1 to have Section 13.3
applied to the Outstanding Securities of such series.
Section 13.3 Covenant Defeasance.
-------------------
Upon the Company's exercise of the option provided in Section 13.1 to
have this Section 13.3 applied to the Outstanding Securities of any Defeasible
Series, (1) the Company shall be released from its obligations under Sections
10.5 through 10.9, inclusive, and Section 8.1, and (2) the occurrence of any
event specified in Sections 5.1(c), 5.1(d) (with respect to any of Sections 10.5
through 10.9, inclusive, and Section 8.1, 5.1(e) and 5.1(h) shall be deemed not
to be or result in an Event of Default, in each case with respect to the
Outstanding Securities of such series as provided in this Section on and after
the date the conditions set forth in Section 13.4 are satisfied (hereinafter
called "Covenant Defeasance"). For this purpose, such Covenant Defeasance means
that 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 specified Section (to
the extent so specified in the case of Section 5.1(d)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and the Securities of
such series shall be unaffected thereby.
Section 13.4 Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of either Section
13.2 or Section 13.3 to the Outstanding Securities of any Defeasible Series:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 6.9 and agrees to comply with the
provisions of this Article XIII 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 Outstanding
Securities of such series (A) money in an amount, or (B) U.S. Government
Obligations that through the scheduled
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payment of principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, in each case sufficient, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of and any premium and
interest on the Securities of such series on the respective Stated Maturities in
accordance with the terms of this Indenture and the Securities of such series.
As used herein, "U.S. Government Obligation" means (x) any security that is (i)
a direct obligation of the United States of America for the payment of which
full faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933,
as amended) as custodian with respect to any U.S. Government Obligation
specified in Clause (x) and held by such custodian for the account of the holder
of such depositary receipt, or with respect to any specific payment of principal
of or interest on any such U.S. Government Obligation, provided that (except as
--------
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific
payment of principal or interest evidenced by such depositary receipt.
(b) In the case of an election under Section 13.2, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date first set forth hereinabove, there has
been a change in the applicable Federal income tax law, in either case (A) or
(B) to the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities of such series will not recognize gain or
loss for Federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to the Securities of such series and will
be subject to Federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit, Defeasance and discharge
were not to occur.
(c) In the case of an election under Section 13.3, 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 gain or
loss for Federal income tax purposes as a result of the deposit
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and Covenant Defeasance to be effected with respect to the Securities of such
series and will be subject to Federal income tax on the same amount, in the same
manner and at the same time as would be the case if such deposit and Covenant
Defeasance were not to occur.
(d) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities of such series, if then
listed on any securities exchange, will not be delisted as a result of such
deposit.
(e) No Event of Default or event that (after notice or lapse of
time or both) would become an Event of Default shall have occurred and be
continuing at the time of such deposit or, with regard to any Event of Default
or any such event specified in Sections 5.1(f) and (g), at any time on or prior
to the 90th day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 90th day).
(f) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust Indenture
Act (assuming all Securities are in default within the meaning of such Act).
(g) Such Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(h) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant Defeasance have
been complied with.
(i) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such trust
shall be qualified under such Act or exempt from regulation thereunder.
Section 13.5 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 10.3, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section and Section 13.6, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 13.4 in respect of the
Securities of any Defeasible Series shall be held in trust and applied by the
Trustee, in accordance with the provisions of the Securities of such series and
this Indenture, to the payment, either directly or through any such Paying Agent
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(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of Securities of such series, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 13.4 or the principal and interest received in
respect thereof other than any such tax, fee or other charge that by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article XIII 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 13.4 with respect to Securities of any Defeasible Series that, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Defeasance or Covenant Defeasance with respect to the
Securities of such series.
Section 13.6 Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article XIII 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 series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article XIII with respect to Securities of such series until such time as
the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to Section 11.5 with respect to Securities of such series in accordance
with this Article XIII; provided, however, that if the Company makes any payment
-------- -------
of principal of or any premium or interest on any Security of such series
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of Securities of such series to receive such
payment from the money so held in trust.
------------------------------
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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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.
CYPRUS AMAX MINERALS COMPANY
By:
-----------------------------------------
Gerald J. Malys,
Senior Vice President and
Chief Financial Officer
Attest:
- ---------------------------
TEXAS COMMERCE TRUST COMPANY, NATIONAL
ASSOCIATION
By:
-----------------------------------------
Melissa A. Scott,
Vice President
Attest:
- ---------------------------
STATE OF COLORADO )
) ss.
COUNTY OF ARAPAHOE )
On the _____ day of ______________, 1994, before me personally came
Gerald J. Malys, to me known, who, being by me duly sworn, did depose and say
that he is Senior Vice President and Chief Financial Officer of Cyprus Amax
Minerals Company, 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.
---------------------------------
Notary Public
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STATE OF TEXAS )
) ss.
COUNTY OF DALLAS )
On the _____ day of ____________, 1994, before me personally came
Melissa A. Scott, to me known, who, being by me duly sworn, did depose and say
that she is a Vice President of Texas Commerce Trust Company, National
Association, one of the corporations described in and which executed the
foregoing instrument; that she 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 she signed her
name thereto by like authority.
---------------------------------
Notary Public
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<PAGE>
EXHIBIT A
FORM OF CERTIFICATE TO BE
GIVEN BY OWNER OF SECURITY OR BENEFICIAL OWNER OF
INTEREST IN A GLOBAL SECURITY
CYPRUS AMAX MINERALS COMPANY
TITLE OF SECURITIES
(THE "SECURITIES")
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities that are held by the undersigned or held
by you for the account of the undersigned (i) are owned by person(s) that are
not citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United States
persons"), (ii) are owned by United States person(s) that (A) are foreign
branches of United States financial institutions (as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing for
their own account or for resale, or (B) acquired Securities through foreign
branches of United States financial institutions and who hold the Securities
through such United States financial institutions on the date hereof (and in
either case (A) or (B), each such United States financial institution hereby
certifies, on its own behalf or through its agent, that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) are owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)) and in addition if the owner of the Securities is a United
States or foreign financial institution described in clause (iii) above (whether
or not also described in clause (i) or (ii)) this is to further certify that
such financial institution has not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify that, except as set forth below, (i) in the
case of debt securities, the Securities are beneficially owned by (a) non-U.S.
person(s) or (b) U.S. person(s) who purchased the Securities in transactions
which did not require registration under the Act; or (ii) in the case of equity
securities, the Securities are owned by (x) non-U.S. person(s) (and such
person(s) are not acquiring the Securities for the account or benefit of U.S.
person(s)) or (y) U.S. person(s) who purchased the Securities in a transaction
which did not require registration under the Act. If this certification is
being delivered in connection with the exercise of warrants pursuant to Section
230.902(m) of Regulation S under the Act, then this is further
A-1
<PAGE>
to certify that, except as set forth below, the Securities are being exercised
by and on behalf of non-U.S. person(s). As used in this paragraph the term
"U.S. person" has the meaning given to it by Regulation S under the Act.
As used herein, "United States" means the United States of America
(including the States and District of Columbia); and its "possessions" including
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the Securities
held by you for our account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
This certification excepts and does not relate to
$_____________________ of such interest in the above Securities in respect of
which we are not able to certify and as to which we understand exchange and
delivery of definitive Securities (or, if relevant, exercise of any rights or
collection of any interest) cannot be made until we do so certify.
We understand that this certification is required in Connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
*Dated: ____________________________, ________
NAME OF PERSON MAKING CERTIFICATION
By: __________________________________________
As, or as Agent for, the beneficial
owner(s) of the Securities to which
this Certificate relates
By: __________________________________________
As, or as Agent for, the financial
institution (if any) through which
a United States Person acquired the
Securities to which this Certificate
relates
- ---------------------------
*To be dated no earlier that the Certification Date.
A-2
<PAGE>
EXHIBIT B
FORM OF CERTIFICATION TO BE GIVEN
BY [EUROCLEAR OR CEDEL S.A.]
CYPRUS AMAX MINERALS COMPANY
TITLE OF SECURITIES
(THE "SECURITIES")
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture, dated as of
___________________________________, between Cyprus Amax Minerals Company and
The Bank of New York, as of the date hereof, { } principal amount
of the above captioned Securities (i) is owned by persons that are not citizens
or residents of the United States, domestic partnerships, domestic corporations
or any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States persons"), (ii) is
owned by United States persons that (A) are foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section 1.165-
12(c)(1)(v)) ("financial institutions") purchasing for their own account or for
resale, or (B) acquired Securities through foreign branches of United States
financial institutions and who hold the Securities through such United States
financial institutions on the date hereof (and in either case (A) or (B), each
such United States financial institution has certified, on its own behalf or
through its agent, that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) is owned by United States or foreign
financial institutions for purposes of resale during the restricted period (as
defined in U.S. Treasury Regulations section 1.163-5(c)(2)(i)(D)(7)), and to the
further effect that the United States or foreign financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify with respect to principal amount of
Securities set forth above that, except as set forth below, we have received in
writing, by tested telex or by electronic transmission, from our Member
Organizations entitled to a portion of such principal amount, certifications
with respect to such portion, substantially to the effect set forth in the
Indenture.
B-1
<PAGE>
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any interest)
any portion of the temporary Global Security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organizations to the effect that the statements made by such
Member Organizations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification or a
copy hereof to any interest party in such proceedings.
Dated: ______________________________, _______
(dated the Exchange Date or the Interest Payment Date)
_______________________________________
as operator of the Euroclear System
or
[CEDEL S.A.]
By: ___________________________________
B-2
<PAGE>
---------------------------------------------------------------------
CYPRUS AMAX MINERALS COMPANY
TO
----------------------------
Trustee
---------------
INDENTURE
Dated as of _________________, 19__
---------------
Senior Subordinated Securities
---------------------------------------------------------------------
<PAGE>
Cyprus Amax Minerals Company
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
<S> <C>
(S) 310(a)(1) .................................... 6.9
(a)(2) .................................... 6.9
(a)(3) .................................... Not Applicable
(a)(4) .................................... Not Applicable
(b) .................................... 6.8
6.10
(S) 311(a) .................................... 6.13
(b) .................................... 6.13
(S) 312(a) .................................... 7.1
7.2
(b) .................................... 7.2
(c) .................................... 7.2
(S) 313(a) .................................... 7.3
(b) .................................... 7.3
(c) .................................... 7.3
(d) .................................... 7.3
(S) 314(a) .................................... 7.4
(a)(4) .................................... 1.1
10.4
(b) .................................... Not Applicable
(c)(1) .................................... 1.2
(c)(2) .................................... 1.2
(c)(3) .................................... Not Applicable
(d) .................................... Not Applicable
(e) .................................... 1.2
(S) 315(a) .................................... 6.2
(b) .................................... 6.2
(c) .................................... 6.1
(d) .................................... 6.1
(e) .................................... 5.14
(S) 316(a) .................................... 1.1
(a)(1)(A) .................................... 5.2
5.12
(a)(1)(B) .................................... 5.13
(a)(2) .................................... Not Applicable
(b) .................................... 5.8
(c) .................................... 1.4
(S) 317(a)(1) .................................... 5.3
(a)(2) .................................... 5.4
(b) .................................... 10.3
(S) 318(a) .................................... 1.7
- --------------------
</TABLE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION> Page
----
<S> <C>
RECITALS OF THE COMPANY.................................................... 1
ARTICLE I Definitions and Other Provisions of General
Application................................................... 1
Section 1.1 Definitions............................................. 1
-----------
Section 1.2 Compliance Certificates and Opinions.................... 10
------------------------------------
Section 1.3 Form of Documents Delivered to Trustee.................. 11
--------------------------------------
Section 1.4 Acts of Holders; Record Dates........................... 11
-----------------------------
Section 1.5 Notices, Etc., to Trustee and Company................... 14
-------------------------------------
Section 1.6 Notice to Holders; Waiver............................... 15
-------------------------
Section 1.7 Conflict with Trust Indenture Act....................... 16
---------------------------------
Section 1.8 Effect of Headings and Table of Contents................ 16
----------------------------------------
Section 1.9 Successors and Assigns.................................. 16
----------------------
Section 1.10 Separability Clause..................................... 16
-------------------
Section 1.11 Benefits of Indenture................................... 16
---------------------
Section 1.12 Governing Law........................................... 17
-------------
Section 1.13 Legal Holidays.......................................... 17
--------------
ARTICLE II Security Forms................................................ 17
Section 2.1 Forms Generally......................................... 17
---------------
Section 2.2 Form of Face of Registered Security..................... 18
-----------------------------------
Section 2.3 Form of Reverse of Registered Security.................. 20
--------------------------------------
Section 2.4 Form of Legend for Global Securities.................... 25
------------------------------------
Section 2.5 Form of Trustee's Certificate of
--------------------------------
Authentication.......................................... 25
--------------
ARTICLE III The Securities................................................ 25
Section 3.1 Amount Unlimited; Issuable in Series.................... 25
-----------------------------------
Section 3.2 Denominations........................................... 28
-------------
Section 3.3 Execution, Authentication, Delivery and
---------------------------------------
Dating.................................................. 28
------
Section 3.4 Temporary Securities.................................... 31
--------------------
Section 3.5 Registration, Registration of Transfer
--------------------------------------
and Exchange............................................ 33
------------
Section 3.6 Mutilated, Destroyed, Lost and Stolen
-------------------------------------
Securities.............................................. 36
----------
Section 3.7 Payment of Interest; Interest Rights
------------------------------------
Preserved............................................... 37
---------
Section 3.8 Persons Deemed Owners................................... 39
---------------------
Section 3.9 Cancellation............................................ 39
------------
Section 3.10 Computation of Interest................................. 40
-----------------------
ARTICLE IV Satisfaction and Discharge................................... 40
Section 4.1 Satisfaction and Discharge of Indenture................. 40
Section 4.2 Application of Trust Money.............................. 41
</TABLE>
(i)
<PAGE>
<TABLE>
<S> <C>
ARTICLE V Remedies...................................................... 42
Section 5.1 Events of Default....................................... 42
-----------------
Section 5.2 Acceleration of Maturity; Rescission
------------------------------------
and Annulment........................................... 44
-------------
Section 5.3 Collection of Indebtedness and Suits
------------------------------------
for Enforcement by Trustee.............................. 45
--------------------------
Section 5.4 Trustee May File Proofs of Claim........................ 45
--------------------------------
Section 5.5 Trustee May Enforce Claims Without
----------------------------------
Possession of Securities................................ 46
------------------------
Section 5.6 Application of Money Collected.......................... 46
------------------------------
Section 5.7 Limitation on Suits..................................... 47
-------------------
Section 5.8 Unconditional Right of Holders to
---------------------------------
Receive Principal, Premium and Interest................. 47
---------------------------------------
Section 5.9 Restoration of Rights and Remedies...................... 48
----------------------------------
Section 5.10 Rights and Remedies Cumulative.......................... 48
------------------------------
Section 5.11 Delay or Omission Not Waiver............................ 48
----------------------------
Section 5.12 Control by Holders...................................... 48
------------------
Section 5.13 Waiver of Past Defaults................................. 49
-----------------------
Section 5.14 Undertaking for Costs................................... 49
---------------------
Section 5.15 Waiver of Usury, Stay or Extension Laws................. 49
---------------------------------------
ARTICLE VI The Trustee................................................... 50
Section 6.1 Certain Duties and Responsibilities..................... 50
-----------------------------------
Section 6.2 Notice of Defaults...................................... 50
------------------
Section 6.3 Certain Rights of Trustee............................... 50
-------------------------
Section 6.4 Not Responsible for Recitals or
-------------------------------
Issuance of Securities.................................. 51
----------------------
Section 6.5 May Hold Securities..................................... 51
-------------------
Section 6.6 Money Held in Trust..................................... 52
-------------------
Section 6.7 Compensation and Reimbursement.......................... 52
------------------------------
Section 6.8 Disqualification; Conflicting Interests................. 52
---------------------------------------
Section 6.9 Corporate Trustee Required; Eligibility................. 52
---------------------------------------
Section 6.10 Resignation and Removal; Appointment of
---------------------------------------
Successor............................................... 53
---------
Section 6.11 Acceptance of Appointment by Successor.................. 54
--------------------------------------
Section 6.12 Merger, Conversion, Consolidation or
------------------------------------
Succession to Business.................................. 56
----------------------
Section 6.13 Preferential Collection of Claims
---------------------------------
Against Company.......................................... 56
---------------
Section 6.14 Appointment of Authenticating Agent...................... 56
-----------------------------------
ARTICLE VII Holders' Lists and Reports by Trustee and
Company....................................................... 58
Section 7.1 Company to Furnish Trustee Names and
------------------------------------
Addresses of Holders.................................... 58
--------------------
Section 7.2 Preservation of Information;
----------------------------
Communications to Holders............................... 58
-------------------------
Section 7.3 Reports by Trustee...................................... 59
------------------
Section 7.4 Reports by Company...................................... 59
------------------
</TABLE>
(ii)
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE VIII Consolidation, Merger, Conveyance, Transfer or
Lease......................................................... 59
Section 8.1 Company May Consolidate, Etc., Only on
--------------------------------------
Certain Terms........................................... 59
-------------
Section 8.2 Successor Substituted................................... 60
---------------------
ARTICLE IX Supplemental Indentures....................................... 61
Section 9.1 Supplemental Indentures Without Consent
---------------------------------------
of Holders.............................................. 61
----------
Section 9.2 Supplemental Indentures with Consent of
---------------------------------------
Holders................................................. 62
-------
Section 9.3 Execution of Supplemental Indentures.................... 63
------------------------------------
Section 9.4 Effect of Supplemental Indentures....................... 63
---------------------------------
Section 9.5 Conformity with Trust Indenture Act..................... 64
-----------------------------------
Section 9.6 Reference in Securities to Supplemental
---------------------------------------
Indentures.............................................. 64
----------
ARTICLE X Covenants..................................................... 64
Section 10.1 Payment of Principal, Premium and
---------------------------------
Interest................................................ 64
--------
Section 10.2 Maintenance of Office or Agency......................... 64
-------------------------------
Section 10.3 Money for Securities Payments to Be
-----------------------------------
Held in Trust........................................... 66
-------------
Section 10.4 Statement by Officers as to Default..................... 67
-----------------------------------
Section 10.5 Existence............................................... 68
---------
Section 10.6 Maintenance of Properties............................... 68
-------------------------
Section 10.7 Payment of Taxes and Other Claims....................... 68
---------------------------------
Section 10.8 Restrictions on Secured Debt............................ 68
----------------------------
Section 10.9 Restriction on Sales and Leasebacks..................... 70
-----------------------------------
Section 10.10 Limitation on Subordinated Indebtedness................. 72
---------------------------------------
Section 10.11 Waiver of Certain Covenants............................. 72
---------------------------
ARTICLE XI Redemption of Securities...................................... 72
Section 11.1 Applicability of Article................................ 72
------------------------
Section 11.2 Election to Redeem; Notice to Trustee................... 73
-------------------------------------
Section 11.3 Selection by Trustee of Securities to
-------------------------------------
be Redeemed............................................. 73
-----------
Section 11.4 Notice of Redemption.................................... 74
--------------------
Section 11.5 Deposit of Redemption Price............................. 74
---------------------------
Section 11.6 Securities Payable on Redemption Date................... 74
-------------------------------------
Section 11.7 Securities Redeemed in Part............................. 75
---------------------------
ARTICLE XII Sinking Funds................................................. 76
Section 12.1 Applicability of Article................................ 76
------------------------
Section 12.2 Satisfaction of Sinking Fund Payments
-------------------------------------
With Securities......................................... 77
---------------
</TABLE>
(iii)
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 12.3 Redemption of Securities for Sinking
------------------------------------
Fund.................................................... 77
----
ARTICLE XIII Defeasance and Covenant Defeasance............................ 78
Section 13.1 Company's Option to Effect Defeasance
-------------------------------------
or Covenant Defeasance.................................. 78
----------------------
Section 13.2 Defeasance and Discharge................................ 78
------------------------
Section 13.3 Covenant Defeasance..................................... 79
-------------------
Section 13.4 Conditions to Defeasance or Covenant
------------------------------------
Defeasance.............................................. 79
----------
Section 13.5 Deposited Money and U.S. Government
-----------------------------------
Obligations to be Held in Trust; Other
--------------------------------------
Miscellaneous Provisions................................ 81
------------------------
Section 13.6 Reinstatement........................................... 82
-------------
ARTICLE XIV Subordination of Securities................................... 82
Section 14.1 Securities Subordinate to Senior
--------------------------------
Indebtedness............................................ 82
------------
Section 14.2 Payment Over of Proceeds Upon
-----------------------------
Dissolution, Etc........................................ 82
----------------
Section 14.3 Prior Payment to Senior Indebtedness
------------------------------------
Upon Acceleration of Securities......................... 84
-------------------------------
Section 14.4 No Payment When Senior Indebtedness in
--------------------------------------
Default................................................. 84
-------
Section 14.5 Payment Permitted If No Default......................... 85
-------------------------------
Section 14.6 Subrogation to Rights of Holders of
-----------------------------------
Senior Indebtedness..................................... 85
-------------------
Section 14.7 Provisions Solely to Define Relative
------------------------------------
Rights.................................................. 86
------
Section 14.8 Trustee to Effectuate Subordination..................... 86
-----------------------------------
Section 14.9 No Waiver of Subordination Provisions................... 86
-------------------------------------
Section 14.10 Notice to Trustee....................................... 87
-----------------
Section 14.11 Reliance on Judicial Order or
-----------------------------
Certificate of Liquidating Agent........................ 88
--------------------------------
Section 14.12 Trustee Not Fiduciary for Holders of
------------------------------------
Senior Indebtedness..................................... 88
-------------------
Section 14.13 Rights of Trustee as Holder of Senior
-------------------------------------
Indebtedness; Preservation of Trustee's
---------------------------------------
Rights.................................................. 88
------
Section 14.14 Article Applicable to Paying Agents..................... 88
-----------------------------------
Section 14.15 Trust Moneys Not Subordinated........................... 89
-----------------------------
</TABLE>
(iv)
<PAGE>
INDENTURE, dated as of ________________, 19___, between CYPRUS AMAX
MINERALS COMPANY, a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its principal office
at 9100 East Mineral Circle, Englewood, Colorado 80112, and ___________________,
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
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
This Indenture is subject to the provisions of the Trust Indenture Act
and the rules and regulations of the Commission promulgated thereunder that are
required to be part of this Indenture and, to the extent applicable, shall be
governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE I
Definitions and Other Provisions
of General Application
Section 1.1 Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the singular;
(b) 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;
(c) 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
<PAGE>
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation;
(d) the words "Article" and "Section" refer to an Article and
Section, respectively, of this Indenture; and
(e) 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 Articles VI, X and XIII are defined
in those Articles.
"Act," when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable and at any date as of which the amount thereof is
to be determined, the total net amount of rent required to be paid by such
Person under such lease during the remaining primary term thereof, discounted
from the respective due dates thereof to such date at the rate of 10-1/8% per
annum. The net amount of rent required to be paid under any such lease for any
such period shall be the aggregate amount of 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 after giving appropriate credit for lease payments payable to such
Person by any sublessee. In the case of any lease which is terminable by the
lessee upon the payment of a penalty, such net amount shall also include the
amount of such penalty, but 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 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form established pursuant
to Section 2.1 which is payable to bearer, including, without limitation, unless
the context otherwise indicates, a Security in temporary or permanent global
bearer form.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
-2-
<PAGE>
"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.
"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, from time
to time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, either of its
Co-Chairmen of the Board, its Vice 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 liabilities other than deferred income taxes,
liabilities resulting from any charge in connection with the adoption of
Statement of Financial Accounting Standards (SFAS) 106 "Employers' Accounting
for Postretirement Benefits Other Than Pensions", and Funded Debt and (ii) all
goodwill, trade names, trademarks, patents, organization expenses 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. Mine development costs and other similar
-3-
<PAGE>
assets shall be not considered to be intangibles for this purpose.
"Corporate Trust Office" means the principal office of the Trustee in
__________________ at which at any particular time its corporate trust business
shall be administered.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Covenant Defeasance" has the meaning specified in Section 13.3.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Defeasance" has the meaning specified in Section 13.2.
"Defeasible Series" has the meaning specified in Section 13.1.
"Depositary" means, with respect to the Securities of any series
issuable in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act as
Depositary for such Securities as contemplated by Section 3.1.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any statute successor thereto.
"Funded Debt" means (i) all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the determination is
made or having a maturity of 12 months or less but by its terms being renewable
or extendable beyond 12 months from such date at the option of the borrower and
(ii) rental obligations payable more than 12 months from such date under leases
which are capitalized in accordance with generally accepted accounting
principles (such rental obligations to be included as Funded Debt at the amount
so capitalized and to be included for the purposes of the definition of
Consolidated Net Tangible Assets both as an asset and as Funded Debt at the
amount so capitalized).
"Global Security" means a Security that evidences all or part of the
Securities of any series and is authenticated and delivered to the Depositary
for such Securities or a nominee thereof. Global Securities may be issued in
either registered or bearer form and in either temporary or permanent form.
Permanent Global Securities will be issued in definitive form.
"Holder", when used with respect to any Security, means in the case of
a Registered Security the Person in whose name the Security is registered in the
Security Register and in the case of a Bearer Security the bearer thereof and,
when used with respect to any coupon, means the bearer thereof.
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<PAGE>
"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,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated in Section 3.1.
"interest," when used with respect to the 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 otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 5.1(d).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, either Co-Chairmen of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee. One of the officers signing an Officers' Certificate given pursuant to
Section 10.4 shall be the principal executive, financial or accounting officer
of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, 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 5.2.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
------
(1) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
-5-
<PAGE>
(2) 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 and any coupons appertaining thereto; provided that, if such
--------
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee
has been made;
(3) Securities as to which Defeasance has been effected
pursuant to Section 13.2; and
(4) Securities which have been paid pursuant to Section 3.6 or
in exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (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 acceleration of the Maturity
thereof to such date pursuant to Section 5.2, (B) the principal amount of a
Security denominated in one or more foreign currencies or currency units shall
be the U.S. dollar equivalent, determined in the manner provided as contemplated
by Section 3.1 on the date of original issuance of such Security, of the
principal amount (or, in the case of an Original Issue Discount Security, the
U.S. dollar equivalent on the date of original issuance of such Security of the
amount determined as provided in Clause (A) above) of such Security, and (C)
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.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
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<PAGE>
"Person" means any individual, corporation, partnership, joint
venture, 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 any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any mine, mill, converting plant,
manufacturing plant, or other substantial facility owned at the date hereof or
hereafter acquired by the Company or any Restricted Subsidiary of the Company
which is located within the present 50 States of the United States of America
and the gross book value (including related land and improvements thereon, any
minerals or mineral rights and all machinery and equipment included therein
without deduction of any depreciation reserves) of which on the date as of which
the determination is being made exceeds 2-1/2% of Consolidated Net Tangible
Assets, other than (i) any property which in the opinion of the Board of
Directors of the Company is not of material importance to the total business
conducted by the Company as an entirety or (ii) any portion of a particular
property which is similarly found not to be of material importance to the use or
operation of such property.
"Realty Subsidiary" means a Subsidiary of the Company engaged
primarily in the development and sale or financing of real property.
"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.
"Registered Security" means any Security in the form established
pursuant to Article II which is registered in the Security Register.
"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 10.1.
"Responsible Officer," when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of
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<PAGE>
directors, the chairman or any co-chairman or vice-chairman of the executive
committee of the board of directors, the chairman of the trust committee, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller or any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Restricted Subsidiary" means a Subsidiary of the Company (i)
substantially all the property of which is located, or substantially all the
business of which is carried on, within the present 50 States of the United
States of America and (ii) which owns a Principal Property, but does not include
a Realty Subsidiary.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest on (a) all indebtedness of the Company (including indebtedness of
others guaranteed by the Company) other than the Securities, which is (i) for
money borrowed or (ii) evidenced by a note or similar instrument given in
connection with the acquisition of any businesses, properties or assets of any
kind, (b) obligations of the Company as lessee under leases required to be
capitalized on the balance sheet of the lessee under generally accepted
accounting principles and (c) amendments, renewals, extensions, modifications
and refundings of any such indebtedness or obligation, in any such case whether
outstanding on the date of this Indenture or thereafter created, incurred or
assumed, unless in any case in the instrument creating or evidencing any such
indebtedness or obligation or pursuant to which the same is outstanding it is
provided that such indebtedness or obligation is not superior in right of
payment to the Securities or it is provided that such obligation is subordinated
to senior indebtedness to substantially the same extent as the Securities are
subordinated to Senior Indebtedness.
"Senior Subordinated Indebtedness" means the Securities and any other
indebtedness, guarantee or obligation of the Company that specifically provides
that such indebtedness, guarantee or obligation is to rank pari passu with other
---- -----
Senior Subordinated Indebtedness of the Company and is not subordinated
-8-
<PAGE>
by its terms to any indebtedness, guarantee or obligation of the Company which
is not Senior Indebtedness.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest 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.
"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.
"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 each Trustee with respect to
Securities of that series.
"U.S. Government Obligations" has the meaning specified in Section
13.4.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
Section 1.2 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 such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the
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<PAGE>
Company, or an Opinion of Counsel, if to be given by counsel, and shall comply
with the requirements of the Trust Indenture Act and any other requirements set
forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
provided for in Section 10.4) shall include
(a) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) A statement that, in the opinion of 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
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3 Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company or any subsidiary of
the Company stating that the information with respect to such factual matters is
in the possession of the Company or any subsidiary of the Company, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
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<PAGE>
Where any Person is required to make, give, or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.4 Acts of Holders; Record Dates.
-----------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted 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 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 6.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
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.
The ownership of Securities shall be proved by the Security Register.
The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Trustee to be satisfactory.
The Trustee and the Company may assume that such ownership of any Bearer
Security continues until (1) another certificate bearing a later date issued
in respect of the same Bearer Security is produced, (2) such Bearer Security
is produced to the Trustee by some other Person, (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding. The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may also be
proved in any other manner which the Trustee deems sufficient.
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.
The Company may, in the circumstances permitted by the Trust Indenture
Act, set any day as the record date for the purpose of determining the Holders
of Outstanding Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
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<PAGE>
provided or permitted by this Indenture to be given or taken by Holders of
Securities of such series. With regard to any record date set pursuant to this
paragraph, the Holders of Outstanding Securities of the relevant series on such
record date (or their duly appointed agents), and only such Persons, shall be
entitled to give or take the relevant action, whether or not such Holders remain
Holders after such record date. With regard to any action that may be given or
taken hereunder only by Holders of a requisite principal amount of Outstanding
Securities of any series (or their duly appointed agents) and for which a record
date is set pursuant to this paragraph, the Company may, at its option, set an
expiration date after which no such action purported to be given or taken by any
Holder shall be effective hereunder unless given or taken on or prior to such
expiration date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly appointed agents).
On or prior to any expiration date set pursuant to this paragraph, the Company
may, on one or more occasions at its option, extend such date to any later date.
Nothing in this paragraph shall prevent any Holder (or any duly appointed agent
thereof) from giving or taking, after any such expiration date, any action
identical to, or, at any time, contrary to or different from, the action or
purported action to which such expiration date relates, in which event the
Company may set a record date in respect thereof pursuant to this paragraph.
Nothing in this paragraph shall be construed to render ineffective any action
taken at any time by the Holders (or their duly appointed agents) of the
requisite principal amount of Outstanding Securities of the relevant series on
the date such action is so taken. Notwithstanding the foregoing or the Trust
Indenture Act, the Company shall not set a record date for, and the provisions
of this paragraph shall not apply with respect to, any notice, declaration or
direction referred to in the next paragraph.
Upon receipt by the Trustee from any Holder of Securities of a
particular series of (i) any written notice of default or breach referred to in
Section 5.1(d) or 5.1(e) with respect to Securities of such series, if such
default or breach has occurred and is continuing and the Trustee shall not have
given such written notice to the Company, (ii) any declaration of acceleration
referred to in Section 5.2, if an Event of Default with respect to Securities of
such series has occurred and is continuing and the Trustee shall not have given
such a declaration to the Company, or (iii) any direction referred to in Section
5.12 with respect to Securities of such series, if the Trustee shall not have
taken the action specified in such direction, then a record date shall
automatically and without any action by the Company or the Trustee be set for
determining the Holders of Outstanding Securities of such series entitled to
join in such notice, declaration or direction, which record date shall be the
close of business on the tenth day following the day on which the Trustee
receives such notice, declaration or direction. Promptly after such receipt by
the Trustee, and in any case not
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<PAGE>
later than the fifth day thereafter, the Trustee shall notify the Company and
the Holders of Outstanding Securities of such series of any such record date so
fixed. The Holders of Outstanding Securities of such series on such record date
(or their duly appointed agents), and only such Persons, shall be entitled to
join in such notice, declaration or direction, whether or not such Holders
remain Holders after such record date; provided that, unless such notice,
--------
declaration or direction shall have become effective by virtue of Holders of the
requisite principal amount of Outstanding Securities of such series on such
record date (or their duly appointed agents) having joined therein on or prior
to the 90th day after such record date, such notice, declaration or direction
shall automatically and without any action by any Person be cancelled and of no
further effect. Nothing in this paragraph shall be construed to prevent a
Holder (or a duly appointed agent thereof) from giving, before or after the
expiration of such 90-day period, a notice, declaration or direction contrary to
or different from, or, after the expiration of such period, identical to, the
notice, declaration or direction to which such record date relates, in which
event a new record date in respect thereof shall be set pursuant to this
paragraph. Nothing in this paragraph shall be construed to render ineffective
any notice, declaration or direction of the type referred to in this paragraph
given at any time to the Trustee and the Company by Holders (or their duly
appointed agents) of the requisite principal amount of Outstanding Securities of
the relevant series on the date such notice, declaration or direction is so
given.
Without limiting the foregoing, a Holder entitled hereunder to give or
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 different part of such principal amount.
Section 1.5 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,
(a) 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:
_________________, or
(b) 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
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<PAGE>
instrument or at any other address previously furnished in writing to the
Trustee by the Company.
Section 1.6 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) (i) to Holders of Registered Securities 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
(if any), and not earlier than the earliest date (if any), 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 and (ii) to Holders of Bearer Securities if
published in an Authorized Newspaper in the City of New York and London or
other capital city in Western Europe and in such other city or cities as may
be specified in such Bearer Securities on a Business Day at least twice, the
first such publication to be not earlier than the earliest date (if any), and
not later than the latest date (if any), prescribed for the giving of 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 regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder. In any case in which notice to
Holders of Registered Securities is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
of a Registered Security, shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided herein.
In case by reason of the suspension of any Authorized Newspaper or
Authorized Newspapers or by reason of any other cause it shall be impracticable
to publish any notice to Holders of Bearer Securities as provided above, then
such notification to Holders of Bearer Securities as shall be made with the
approval of the Trustee for such Securities shall constitute sufficient notice
to such Holders for every purpose hereunder. Neither the failure to give notice
by publication to Holders of Bearer Securities as provided above, nor any defect
in any notice so published, shall affect the sufficiency of any notice to
Holders of Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 1.7 Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
Section 1.8 Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.9 Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
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Section 1.10 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 1.11 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, the Holders [and the holders of Senior Indebtedness], any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 1.12 Governing Law.
-------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
Section 1.13 Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of the Securities of any series which specifically
states that such provision shall apply in lieu of this Section) payment of
interest or principal (and premium, if any) need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity, provided that no
--------
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.
ARTICLE II
Security Forms
Section 2.1 Forms Generally.
---------------
The Registered Securities, if any, of each series and Bearer
Securities, if any, of each series and related coupons appertaining thereto
shall be in substantially the form set forth in this Article, or in such other
form as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or
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as may, consistently herewith, be determined by the officers executing such
Securities or coupons appertaining thereto, as evidenced by their execution of
the Securities or coupons appertaining thereto. If temporary Securities of any
series are issued in global form as permitted by Section 3.4, the form thereof
shall be established as provided in the preceding sentence. If the form of
Securities of any series is or coupons appertaining thereto established by
action taken pursuant to a Board Resolution, a copy of an appropriate record
of such action shall be certified by the Secretary or an Assistant Secretary
of the Company and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 3.3 for the authentication and delivery
of such Securities (or any such temporary global Security) or coupons
appertaining thereto.
Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities shall have interest coupons appertaining thereto attached [HRT].
The definitive Securities shall and coupons appertaining thereto, if
any, be printed, lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Section 2.2 Form of Face of Registered Security.
-----------------------------------
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
CYPRUS AMAX MINERALS COMPANY
No. ___________ $______________
Cyprus Amax Minerals Company, a corporation duly organized and
existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _________________________________, or
registered assigns, the principal sum of ______________________________________
Dollars on ___________________________________ [if the Security is to bear
--------------------------
interest prior to Maturity, insert -- , and to pay interest thereon from
- ----------------------------------
_______________ or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on _________________
and __________________ in each year, commencing _________________, at the rate
of ___% per annum, until the principal hereof is paid or made available for
payment [if applicable, insert -- , and at the rate of ___% per annum on any
---------------------
overdue principal and premium and on any overdue installment of interest]. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, which
shall be the __________ or __________ (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest not
so punctually paid or duly provided for will forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the
-16-
<PAGE>
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert --
-----------------------------------------------------------------
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ___% per annum which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand.
Any such interest on any overdue principal that is not so paid on demand shall
bear interest at the rate of ___% per annum which shall accrue from the date of
such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
--------------
insert -- any such] interest on this Security will be made at the office or
- ------
agency of the Company maintained for that purpose in ___________________, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts [if applicable, insert -
---------------------
- - ; provided, however, that at the option of the Company payment of interest may
-------- -------
be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
-17-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: __________________________
CYPRUS AMAX MINERALS COMPANY
By:__________________________
Attest:
______________________________
Section 2.3 Form of Reverse of Registered Security.
--------------------------------------
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of _____________________, 19___ (herein
called the "Indenture"), between the Company and ___________________, as Trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee, the
Holders of the Securities [and the holders of Senior Indebtedness], and of the
terms upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the series designated on the face hereof [if applicable,
--------------
insert -- , limited in aggregate principal amount to $___________].
- ------
[If applicable, insert -- The Securities are not otherwise subject to
---------------------
redemption prior to maturity and no sinking fund is provided for the
Securities.]
[If applicable, insert -- The Securities of this series are subject to
---------------------
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
---------------------
(1) on _________________ in any year commencing with the year _________ and
ending with the year ___________ through operation of the sinking fund for this
series at a Redemption Price equal to 100% of the principal amount, and (2)] at
any time [if applicable, insert -- on or after __________, 19__], as a whole or
---------------------
in part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): If redeemed [if applicable,
--------------
insert -- on or before _______________, ___%, and if redeemed] during the 12-
- ------
month period beginning ______________ of the years indicated,
-18-
<PAGE>
Redemption Redemption
Year Price Year Price
- ---- ----- ---- -----
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
---------------------
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
---------------------
redemption upon not less than 30 days' notice by mail, (1) on ____________ in
any year commencing with the year _________ and ending with the year ______
through operation of the sinking fund for this series at the Redemption Prices
for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time [if
--
applicable, insert -- on or after ________________], as a whole or in part, at
- ------------------
the election of the Company, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12-month
period beginning __________ of the years indicated,
Redemption Price Redemption Price For
For Redemption Redemption Otherwise
Through Operation of Than Through Operation
Year the Sinking Fund of the Sinking Fund
- ---- -------------------- -----------------------
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at
-19-
<PAGE>
the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company
---------------------
may not, prior to __________________, redeem any Securities of this series as
contemplated by [if applicable, insert -- Clause (2) of] the preceding paragraph
---------------------
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than ____% per annum.]
[If applicable, insert -- The sinking fund for this series provides
---------------------
for the redemption on _____________________ in each year beginning with the year
_______ and ending with the year ________ of [if applicable, insert -- not less
---------------------
than $_________ ("mandatory sinking fund") and not more than] $_________
aggregate principal amount of Securities of this series. Securities of this
series acquired or redeemed by the Company otherwise than through [if
--
applicable, insert -- mandatory] sinking fund payments may be credited against
- ------------------
subsequent [if applicable, insert -- mandatory] sinking fund payments otherwise
---------------------
required to be made [if applicable, insert -- in the inverse order in which they
---------------------
become due].]
[If the Security is subject to redemption of any kind, insert -- In
------------------------------------------------------------
the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.]
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, (i) subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness and (ii) pari passu with all other
---- -----
Senior Subordinated Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take action as may be
necessary or appropriate to effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes.
[If applicable, insert -- The Indenture contains provisions for
---------------------
defeasance at any time of (1) the entire indebtedness of this Security or (2)
certain restrictive covenants and Events of Default with respect to this
Security, in each case upon compliance with certain conditions set forth in the
Indenture.]
[If the Security is not an Original Issue Discount Security, insert --
------------------------------------------------------------------
If an Event of Default with respect to
-20-
<PAGE>
Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
--------------------------------------------------------------
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
----------------------------------
amount. Upon payment (i) of the amount of principal so declared due and payable
- ------
and (ii) of interest on any overdue principal and overdue interest all of the
Company's obligations in respect of the payment of the principal of and
interest, if any, on the Securities of this series shall terminate.]
The Indenture 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 Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity.
-21-
<PAGE>
The foregoing shall not apply to any suit instituted by the Holder of this
Security for the enforcement of any payment of principal hereof or any premium
or interest hereon on or after the respective due dates expressed herein.
Subject to the rights of holders of Senior Indebtedness, as set forth
in the Indenture, no other reference herein to the Indenture and no other
provision of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration or
transfer, the Company, the Trustee and any agent of the Company of the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
-22-
<PAGE>
Section 2.4 Form of Legend for Global Securities.
------------------------------------
Every Global Security authenticated and delivered hereunder shall bear
a legend in substantially the following form:
This Security is a Global Security within the meaning
of the Indenture hereinafter referred to and is registered
in the name of a Depositary or a nominee thereof. This
Security may not be transferred to, or registered or
exchanged for Securities registered in the name of, any
Person other than the Depositary or a nominee thereof and
no such transfer may be registered, except in the limited
circumstances described in the Indenture. Every Security
authenticated and delivered upon registration of transfer
of, or in exchange for or in lieu of, this Security shall
be a Global Security subject to the foregoing, except in
such limited circumstances.
Section 2.5 Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
------------------------------
As Trustee
By
----------------------------
Authorized Signatory
ARTICLE III
The Securities
Section 3.1 Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 3.3,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in
-23-
<PAGE>
one or more indentures supplemental hereto, prior to the issuance of Securities
of any series,
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from the Securities of any other
series);
(b) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7 and except for any
Securities which, pursuant to Section 3.3, are deemed never to have been
authenticated and delivered hereunder);
(c) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether any Securities of
the series are to be issuable initially in temporary global form and whether
any Securities of the series are to be issuable in permanent global form or
otherwise, with or without coupons appertaining thereto and, if so, whether
beneficial owners of interests in any such permanent Global Security may
exchange such interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in Section 3.5, and
the Depositary for any Global Security or Securities;
(d) the manner in which, or the Person to whom, any interest
on any Bearer Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature and the extent to which, or the manner in which, any interest
payable on a temporary Global Security on any Interest Payment Date will be
paid if other than in the manner provided in Section 3.5;
(e) the date or dates on which the principal of the Securities
of the series is payable;
(f) the rate or rates 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 any such interest shall be payable
and the Regular Record Date for any interest payable on any Interest Payment
Date;
(g) the place or places where the principal of and any premium
and interest on Securities of the series shall be payable;
(h) 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;
(i) 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;
(j) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series shall be
issuable;
(k) the currency, currencies or currency units in which
payments of the principal of and any premium and
-24-
<PAGE>
interest on any Securities of the series shall be payable if other than the
currency of the United States of America and the manner of determining the
equivalent thereof in the currency of the United States of America for purposes
of the definition of "Outstanding" in Section 1.1;
(l) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with reference to an
index, the manner in which such amounts shall be determined;
(m) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Company or a
Holder thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency, currencies
or currency units in which payment of the principal of and any premium and
interest on Securities of such series as to which such election is made shall be
payable, and the periods within which and the terms and conditions upon which
such election is to be made;
(n) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.2;
(o) the applicability, nonapplicability, or variation, of
Sections 10.8 and 10.9 with respect to the Securities of such series;
(p) if applicable, that the Securities of the series shall be
subject to either or both of Defeasance or Covenant Defeasance as provided in
Article XIII; provided that no series of Securities that is convertible into
Common Stock pursuant to Section 3.1(q) or convertible into or exchangeable for
any other securities pursuant to Section 3.1(r) shall be subject to Defeasance
pursuant to Section 13.2;
(q) if and as applicable, that the Securities of the series
shall be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary or Depositaries for such Global
Security or Global Securities and any circumstances other than those set forth
in Section 3.5 in which any such Global Security may be transferred to, and
registered and exchanged for Securities registered in the name of, a Person
other than the Depositary for such Global Security or a nominee thereof and in
which any such transfer may be registered;
(r) the terms and conditions, if any, pursuant to which the
Securities are convertible into Common Stock of the Company;
-25-
<PAGE>
(s) the terms and conditions, if any, pursuant to which the
Securities are convertible into or exchangeable for any other securities; and
(t) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.1(e)).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 3.3) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 3.2 Denominations.
-------------
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 3.1. In the
absence of any such specified denomination 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 3.3 Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, either of its Co-Chairmen of the Board, its Vice Chairman
of the Board, its President or one of its Vice Presidents, under its corporate
seal reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile. Coupons shall bear the facsimile signature of the Chairman
of the Board, President, Treasurer or any Vice President of the Company.
Securities and coupons appertaining thereto 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, together
with any coupons appertaining thereto, executed by the Company to the Trustee
for authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee
-26-
<PAGE>
in accordance with the Company Order shall authenticate and deliver such
Securities as in this Indenture provided and not otherwise; provided,
however, that, in connection with its sale, during the "restricted period" (as
defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury
Regulations), no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and provided, further, that a Bearer Security
may (other than a temporary Global Security in bearer form delivered as
provided in Section 3.5) be delivered outside the United States in connection
with its original issuance and only if the Person entitled to receive such
Bearer Security shall have furnished a certificate in the form set forth in
Exhibit A to this Indenture, or in such other form of certificate as shall
contain information then required by federal income tax laws and, if
applicable, federal securities laws, dated no earlier than the Certification
Date. If any Security shall be presented by a permanent global Bearer
Security, then, for purposes of this Section and Section 3.5, the notation of
a beneficial owner's interest therein upon original issuance of such Security
or upon exchange of a portion of a temporary Global Security shall be deemed
to be delivery in connection with sale, during the "restricted period" (as
defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury
Regulations) of such beneficial owner's interest in such permanent Global
Security. Except as permitted by Section 3.6, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons
for interest then matured have been detached and cancelled. If 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 2.1 and 3.1, in
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall be fully protected in
relying upon, 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 2.1, 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 3.1, 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 3.1 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 Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date of
issuance of the first Bearer Security of such series to be issued.
No Security or coupons appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Security, or the Security to which such coupon
appertains, a certificate of authentication substantially in the form provided
for herein executed by the
-27-
<PAGE>
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 3.9, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 3.4 Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued in registered form or, if authorized, in bearer form with one or more
coupons appertaining thereto or without coupons, 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. In the case of any series issuable as Bearer Securities, such
temporary Securities may be in global form. A temporary Bearer Security shall
be delivered only in compliance with the conditions set forth in Section 3.3.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and
of a like aggregate principal amount and tenor. Until so exchanged the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series and
tenor; provided, however that no Bearer Security shall be issued in exchange
-------- -------
for a temporary Registered Security; and provided, further, that a definitive
--------
Bearer Security (including interests in a permanent Global Security) shall be
delivered in exchange for a temporary Bearer Security only in compliance with
the conditions set forth in Section 3.3.
Any temporary global Bearer Security and any permanent global Bearer
Security shall, unless otherwise provided therein, be delivered to the London
office of a depositary or common depositary (the "Common Depositary") for the
benefit of [Euroclear and CEDEL S.A.] for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Bearer Security of a series (the "Exchange Date"), the Company shall deliver to
the Trustee definitive Securities of that series in aggregate principal amount
equal to the principal amount of such temporary global Bearer Security, executed
by the Company. On or after the Exchange Date such temporary global Bearer
Security shall be surrendered by the Common Depositary to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities of that series without charge and the Trustee
shall authenticate and deliver, in exchange for each portion of such temporary
global Bearer Security, a like aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such temporary global Bearer Security to be exchanged; provided
--------
however, that unless otherwise specified in such temporary global Bearer
- -------
Security, no such definitive Securities shall be delivered unless, upon such
presentation by the Common Depositary, such temporary global Bearer Security is
accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by [Euroclear] as to the portion of such temporary global Bearer Security
held for its account then to be exchanged and a certificate dated the Exchange
Date or a subsequent date and signed by [CEDEL S.A.] as to the portion of such
temporary global Bearer Security held for its account then to be exchanged, each
in the form set forth in Exhibit B to this Indenture. The definitive Securities
to be delivered in exchange for any such temporary global Bearer Security shall
<PAGE>
be in bearer form, registered form, permanent global bearer form or permanent
global registered form, or any combination thereof, as specified as
contemplated by Section 3.1, and if any combination thereof is so specified,
as requested by the beneficial owner thereof.
Unless otherwise specified in the temporary global Bearer Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Bearer Security shall be exchanged on or after the Exchange Date for
definitive Securities (and where the form of the definitive Securities is not
specified by the Holder for an interest in a permanent Global Security) of the
same series and of like tenor upon delivery by such beneficial owner to
[Euroclear or CEDEL S.A.], as the case may be, of a certificate in the form set
forth in Exhibit A to this Indenture dated no earlier than the Certification
Date, copies of which certificate shall be available from the offices of
[Euroclear and CEDEL S.A.], the Trustee, any Authenticating Agent appointed for
such series of Securities and each Paying Agent. Unless otherwise specified in
such temporary global Bearer Security, any exchange shall be made free of charge
to the beneficial owners of such temporary global Bearer Security, except that a
Person receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the office of [Euroclear or CEDEL
S.A.]. Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary global Bearer Security shall be delivered only outside
the United States.
All Outstanding temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and delivered
hereunder, except that, unless otherwise specified as contemplated by Section
3.1, interest payable on a temporary global Bearer Security on an Interest
Payment Date for Securities of such series shall be payable to [Euroclear and
CEDEL S.A.] on such Interest Payment Date upon delivery by [Euroclear and CEDEL
S.A.] to the Trustee of a certificate or certificates in the form set forth in
Exhibit B to this Indenture, for credit without further interest on or after
such Interest Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary global Bearer Security on such Interest
Payment Date and who have each delivered to [Euroclear or CEDEL S.A.], as the
case may be a certificate in the form set forth in Exhibit A to this indenture.
Any interest so received by [Euroclear and CEDEL S.A.] and not paid as herein
provided shall be returned to the Trustee immediately prior to the expiration of
two years after such Interest Payment Date in order to be repaid to the Company
in accordance with Section 10.3.
Section 3.5 Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar"
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<PAGE>
for the purpose of registering Registered Securities and transfers of Registered
Securities as herein provided.
Upon surrender for registration of transfer of any Registered
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 Registered Securities of the same series, of any authorized denominations
and of a like aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the Registered Securities to be exchanged at such office or
agency. Whenever any Registered Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is entitled to
receive. A Holder of Registered Securities cannot have Bearer Securities
issued in exchange for such Registered Securities.
At the option of the Holder of Bearer Securities of any series, such
Bearer Securities may be exchanged for Registered Securities of the same series
of any authorized denominations and of a like aggregate principal amount and
tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in
default thereto appertaining. If the Holder of a Bearer Security is unable to
produce any such unmatured coupon or coupons or matured coupon or coupons in
default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an amount equal
to the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if
there is furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to any Paying Agent any such missing coupon in
respect of which such a payment shall have been made such Holder shall be
entitled to receive from the Company the amount of such payment; provided,
however, that, except as otherwise provided in Section 10.2, interest
represented by coupons shall be payable only upon presentation and surrender
of those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and like tenor after the close of business at such office
or agency on (i) any Regular Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
in respect of the Registered Security issued in exchange for such Bearer
Security but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration
of transfer or for exchange (if so required by the Company or the Trustee)
shall 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 or Security Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 9.6 or 11.7 not
involving any transfer.
The Company shall not be required (1) 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 11.3 and ending
at the close of business, (A) if Securities of the series are
issuable only as Registered Securities, the day of the mailing of the relevant
notice of redemption and (B) if Securities of the series are issuable as
Bearer Securities, the day of the first publication of the relevant notice of
redemption, except that if Securities of the series are also issuable as
Registered Securities and there is no publication, the mailing of relevant
notice of redemption, (2) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part or (3) to exchange
any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption.
Notwithstanding any other provision in this Indenture, no Global
Registered Security may be transferred to, or registered or exchanged for
Registered Securities registered in the name of, any Person
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<PAGE>
other than the Depositary for such Global Registered Security or any nominee
thereof, and no such transfer may be registered, unless (1) such Depositary
(A) notifies the Company that it is unwilling or unable to continue as
Depositary for such Registered Global Security or (B) ceases to be a clearing
agency registered under the Exchange Act, (2) the Company executes and
delivers to the Trustee a Company Order that such Global Security shall be so
transferable, registrable and exchangeable, and such transfers shall be
registrable, (3) there shall have occurred and be continuing an Event of
Default with respect to the Securities evidenced by such Registered Global
Security or (4) there shall exist such other circumstances, if any, as have
been specified for this purpose as contemplated by Section 3.1.
Notwithstanding any other provision in this Indenture, a Registered Global
Security to which the restriction set forth in the preceding sentence shall
have ceased to apply may be transferred only to, and may be registered and
exchanged for Securities registered only in the name or names of, such Person
or Persons as the Depositary for such Registered Global Security shall have
directed and no transfer thereof other than such a transfer may be registered.
Every Registered Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Registered Security to which the restriction set forth in the first sentence
of the preceding paragraph shall apply, whether pursuant to this Section,
Section 3.4, 3.6, 9.6 or 11.7 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Registered Global Security.
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is or a Security with a mutilated coupon
appertaining to it surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security.
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 or coupons appertaining thereto (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that
such Security or coupon has been acquired by a bona fide purchaser, the
Company shall execute and the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security or in exchange for the security
to which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a new Security of the same series and
of like tenor and principal amount and bearing a number not contemporaneously
outstanding with coupons corresponding to the coupons, if any, appertaining to
such destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security 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; provided, however, that
the principal of and any premium and interest on Bearer Securities shall,
except as otherwise provided in Section 10.2, be payable only at an office or
agency located outside the United States.
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<PAGE>
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
of the destroyed, lost or stolen coupons 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, or coupons.
Section 3.7 Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Registered except as otherwise provided as contemplated by Section
3.1 with respect to any series of Securities, interest on any Registered
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest. Interest on any Bearer Security
which is payable, and is punctually paid or duly provided for, on any Interest
Payment date shall be paid to the bearer of the applicable coupon appertaining
to such Bearer Security. Unless otherwise provided with respect to the
Securities of any series, payment of interest may be made at the option of the
Company (i) in the case of Registered Securities, by check mailed or delivered
to the address of any Person entitled thereto as such address shall appear in
the Security Register, or (ii) in the case of Bearer Securities, except as
otherwise provided in Section 10.2, upon presentation and surrender of the
appropriate coupon appertaining thereto at an office or agency of the Company
in a Place of Payment located outside the United States or by transfer to an
account maintained by the payee with a bank located outside the United States.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (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 (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each Registered Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money 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
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<PAGE>
Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix
a Special Record Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Registered Securities of such series at his address as it
appears in the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (b).
(b) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 3.8 Persons Deemed Owners.
---------------------
Prior to due presentment of a Registered Security for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of
receiving payment of principal of and any premium and (subject to Section 3.7)
any interest on such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 3.9 Cancellation.
------------
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be
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<PAGE>
promptly cancelled by it. All Registered Securities and matured coupons so
delivered shall be promptly cancelled by the Trustee. All Bearer Securities
and unmatured coupons so delivered shall be held by the Trustee and, upon
instruction by a Company Order, shall be cancelled or held for reissuance.
Bearer Securities and unmatured coupons held for reissuance may be reissued
only in replacement of mutilated, lost, stolen or destroyed Bearer Securities
of the same series and like tenor or the related coupons pursuant to Section
3.6. All Bearer Securities and unmatured coupons held by the Trustee pending
such cancellation of reissuance shall be deemed to be delivered to the Trustee
for all purposes of this Indenture and the Securities. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee (or to any other Person
for delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of
as directed by a Company Order.
In the case of any temporary global Bearer Security, which shall be
disposed of if the entire aggregate principal amount of the Securities
represented thereby has been exchanged, the certificate of disposition shall
state that all certificates required pursuant to Section 3.4 hereof,
substantially in the form of Exhibit B hereto, to be given by [Euroclear or
CEDEL S.A.], have been duly presented to the Trustee for such Securities by
[Euroclear or CEDEL S.A.] as the case may be. Permanent Global Securities
shall not be disposed of until exchanged in full for definitive Securities or
until payment thereon is made in full.
Section 3.10 Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE IV
Satisfaction and Discharge
Section 4.1 Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any, appertaining thereto
(other than (i) coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section 3.5, (ii)
Securities and coupons which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.6, (iii) coupons
appertaining to Bearer Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as provided in
Section 11.6, and (iv) Securities and coupons 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 10.3 have been delivered to the Trustee for cancellation;
or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
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<PAGE>
(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 deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount sufficient to pay and discharge the entire indebtedness on
such Securities and coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation, for principal and any premium and interest to
the date of such deposit (in the case of Securities and coupons appertaining
thereto which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Trustee to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (a) of
this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
Section 4.2 Application of Trust Money.
--------------------------
Subject to provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in
trust and applied by it, in accordance with the provisions of the Securities,
the coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and
any premium and interest for whose payment such money has been deposited with
the Trustee and shall not be subject to the claims of the holders of Senior
Indebtedness.
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<PAGE>
ARTICLE V
Remedies
Section 5.1 Events of Default.
-----------------
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) 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
(b) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(d) 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 10% 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
(e) the Company shall fail to pay any Indebtedness in excess of
[$20,000,000] owing by the Company, or any interest or premium thereon, when due
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace period,
if any, specified in the agreement or instrument relating to such Indebtedness,
or the Company shall fail to perform any term, covenant or agreement on its part
to be performed under any agreement or instrument evidencing or securing or
relating to any such Indebtedness, if the effect of such failure in either case
is that the maturity of such Indebtedness is duly accelerated (for this purpose
"Indebtedness" shall have the same meaning as the term "Funded Debt" but the
term Indebtedness shall apply irrespective of the maturity of
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<PAGE>
such indebtedness or obligation) (the Trustee shall not be deemed to have
knowledge of a default under this subsection (e) unless it shall have actual
knowledge thereof); provided, however, that, subject to the provisions of
-------- -------
Sections 6.1 and 6.2, the Trustee shall not be deemed to have knowledge of such
failure to pay unless either (A) a Responsible Officer of the Trustee shall have
actual knowledge of such failure to pay 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 thereunder; or
(f) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(g) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any applicable Federal
or State law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or of
any substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action; or
(h) any other Event of Default provided with respect to
Securities of that series.
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Section 5.2 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.
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
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities and coupons
appertaining thereto, if any, 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,
(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 coupons appertaining thereto, if any, 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
(b) all Events of Default with respect to Securities and
coupons appertaining thereto, if any, 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 5.13.
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<PAGE>
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
- -------
The Company covenants that if
(a) default is made in the payment of any interest on any and
any coupons appertaining thereo Security when such interest becomes due and
payable and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities and coupons, the whole amount then due and
payable on such Securities and coupons for principal and any premium and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and premium 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 an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series and any related company 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 5.4 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 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,
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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 6.7.
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; provided,
--------
however, that the Trustee may, on behalf of the Holders, vote for the election
- -------
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
Section 5.5 Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities or coupon.
- --------------------
All rights of action and claims under this Indenture or the
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or 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 or
coupons in respect of which such judgment has been recovered.
Section 5.6 Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall,
subject to the provisions of Article XIV hereof, be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or any premium or interest,
upon presentation of the Securities or coupons and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.7; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities or
coupons 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 or
coupons for principal and any premium and interest, respectively.
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<PAGE>
Section 5.7 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
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of that
series;
(b) 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;
(c) 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;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.8 Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest.
- --------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(subject to Section 3.7) interest on such Security or such coupon on the
respective Stated Maturities expressed in such Security or coupon (or, in the
case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
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<PAGE>
Section 5.9 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 5.10 Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 3.6, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver.
---------------------------
No delay or omission of the Trustee or of any Holder of any
Securities or coupons 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 5.12 Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
--------
(a) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
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<PAGE>
Section 5.13 Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(a) in the payment of the principal of or any premium or
interest on any Security of such series, or
(b) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 5.14 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 Company.
Section 5.15 Waiver of Usury, 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 usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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<PAGE>
ARTICLE VI
The Trustee
Section 6.1 Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, 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. 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 6.2 Notice of Defaults.
------------------
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified in
- -------- -------
Section 5.1(d) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
Section 6.3 Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall 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
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<PAGE>
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) 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, coupon, 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; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys 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.
Section 6.4 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.
Section 6.5 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
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<PAGE>
pledgee of Securities and coupons and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
Section 6.6 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 6.7 Compensation and Reimbursement.
------------------------------
The Company agrees
(a) 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);
(b) except as otherwise expressly provided herein, to promptly
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
(c) 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.
Section 6.8 Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 6.9 Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be one or more Trustees hereunder with
respect to the Securities of each series, at least one of 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
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<PAGE>
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 Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
Section 6.10 Resignation and Removal; Appointment of Successor.
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 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.
The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
If at any time:
(a) the Trustee shall fail to comply with Section 6.8 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
(b) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company or by any
such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 5.14, any
Holder who has been a bona fide Holder of a
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<PAGE>
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, 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 6.11, 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.
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 1.6. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor.
--------------------------------------
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
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<PAGE>
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
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.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) and (b) of this Section, as the case may be.
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<PAGE>
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 6.12 Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business.
- --------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In 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.
Section 6.13 Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 6.14 Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 3.6, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of
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not 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 to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The 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, subject to the
provisions of Section 6.7.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
----------------------------------
As Trustee
By
--------------------------------
As Authenticating Agent
By
--------------------------------
Authorized Officer
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
Section 7.1 Company to Furnish Trustee Names and Addresses of
-------------------------------------------------
Holders.
- -------
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date, a list for each series of Securities, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Securities
of such series as of the Regular Record Date, as the case may be, 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;
excluding from any such list names and addresses received by the Trustee in its
- ---------
capacity as Security Registrar.
Section 7.2 Preservation of Information; Communications to Holders.
------------------------------------------------------
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 7.1 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 7.1 upon receipt of a new list so furnished.
The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or
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under the Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
Section 7.3 Reports by Trustee.
------------------
The Trustee shall transmit to Holders of Registered Securities, as
the names and addresses of such Holders appear in the Security Register and to
such Holders of Securities as have, within the two years preceding such
transmissions, filed their names and addresses with the Trustee for that
purpose. Such reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
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 7.4 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 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1 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 or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(a) 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,
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the Person formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety shall be a
corporation, partnership or trust, shall be organized and validly existing under
the laws of the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of and 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;
(b) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or any
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would become an Event
of Default, shall have happened and be continuing;
(c) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would become
subject to a mortgage, pledge, lien, security interest or other encumbrance
which would not be permitted by this Indenture, the Company or such successor
Person as the case may be, shall take such steps as shall be necessary
effectively to secure the Securities equally and ratably with (or prior to) all
indebtedness secured thereby; and
(d) 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 8.2 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 8.1, 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
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obligations and covenants under this Indenture and the Securities and coupons.
ARTICLE IX
Supplemental Indentures
Section 9.1 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:
(a) 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
(b) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities and any coupons appertaining
thereto (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
(c) to add any additional Events of Default; or
(d) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of principal
of or any premium or interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities, to permit
Bearer Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of Securities
in uncertificated form
(e) 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 (A) shall neither (i) apply to any
Security and any coupon appertaining thereto of any series created prior to
the execution of such supplemental indenture and entitled to the benefit of
such provision nor (ii) modify the rights of the Holder of any such Security
and any coupon appertaining thereto with respect to such provision or (B)
shall become effective only when there is no such Security and any coupon
appertaining thereto Outstanding; or
(f) to secure the Securities and any coupon appertaining
thereto pursuant to the requirements of Article X or otherwise; or
(g) to establish the form or terms of Securities and any
coupon appertaining thereto of any series as permitted by Sections 2.1 and
3.1; or
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(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11; or
(i) 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
--------
(i) shall not adversely affect the interests of the Holders of Securities of any
series in any material respect.
Section 9.2 Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provision to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall,
-------- -------
without the consent of the Holder of each Outstanding Security affected
thereby,
(a) change the Stated Maturity of the principal of, or any
instalment of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or 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 5.2, or change any
Place of Payment where, or the coin or currency in which, any Security or any
premium or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
(b) 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
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(c) modify any of the provisions of this Section, Section 5.13
or Section 10.11, 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 10.11, or the
deletion of this proviso, in accordance with the requirements of Sections 6.11
and 9.1(h).
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 9.3 Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 9.4 Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.5 Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
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Section 9.6 Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series and any coupons
appertaining thereto.
ARTICLE X
Covenants
Section 10.1 Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 3.1 with respect to any series
of Securities, any interest due on and payable with respect to Bearer
Securities on or before Maturity shall be payable only upon presentation and
surrender of the several coupons for such interest installments, as are
evidenced thereby as they severally mature.
Section 10.2 Maintenance of Office or Agency.
-------------------------------
If Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. If Securities of a series are issuable as Bearer Securities,
the Company will maintain (A) in The Borough of Manhattan, the City of New
York, an office or agency where any Registered Securities of that series may
be presented or surrendered for payment, where any Registered Securities of
that series may be surrendered for registration of transfer, where Securities
of that series may be surrendered for exchange for Registered Securities,
where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served and where Bearer Securities of
that series and related coupons may be presented or surrendered for payment in
the circumstances described in the following paragraph (and not otherwise),
(B) subject to any laws or regulations applicable thereto, in a Place of
Payment for that series which is located outside the United States, an office
or agency where Bearer Securities of that series and related coupons may be
presented and surrendered for payment; provided, however, that if the
Securities of that series are listed on the International Stock Exchange of
the United Kingdom and the Republic of Ireland Limited, the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and
such stock exchange shall so require, the Company will maintain a Paying Agent
for the Securities of that series in London, Luxembourg or any other required
city located outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange, and (C) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
located outside the United States an office or agency where any Registered
Securities of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange and where
notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may
be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
If Securities of a series are issuable as Bearer Securities, the
Company will maintain (A) in The Borough of Manhattan, the City of New York, an
office or agency where any Registered Securities of that series may be presented
or surrendered for payment, where any Registered Securities of that series may
be surrendered for registration of transfer, where Securities of that series may
be surrendered for exchange for Registered Securities, where notices and demands
to or upon the Company in respect of the Securities of that series and this
Indenture may be served and where Bearer Securities of that series and related
coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise), (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Bearer
Securities of that series and related coupons may be presented and surrendered
for payment; provided, however, that if the Securities of that series are listed
on the International Stock Exchange of the United Kingdom and the Republic of
Ireland Limited, the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that series in
London, Luxembourg or any other required city located outside the United States,
as the case may be, so long as the Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States an office or
agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served. The Company
may also from time to time designate one or more other offices or agencies
where the Securities of one or more series may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
- -------- -------
relieve the Company of its obligation to maintain an office or agency in each
Place of Payment for Securities of any series for such purposes. The Company
will give prompt
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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 10.3 Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities and any coupons appertaining thereto, it
will, on or before each due date of the principal of or any premium or
interest on any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal and any premium and interest so becoming due until such sums shall
be paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any coupons appertaining thereto, it will, prior to
each due date of the principal of or any premium or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to pay such
amount, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
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 or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall
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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 and any
coupons appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
--------
however, that the Trustee or such Paying Agent, before being required to make
- -------
any such repayment, may at the expense of the Company cause to be published
once, in an Authorized Newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
Section 10.4 Statement by Officers as to Default.
-----------------------------------
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to 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 10.5 Existence.
---------
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
-------- -------
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 10.6 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
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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 and not disadvantageous in any material respect to the Holders.
Section 10.7 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 10.8 Restrictions on Secured Debt.
----------------------------
Subject to Section 3.1(n), the Company will not itself, and will not
permit any Restricted Subsidiary to, incur, issue, assume, or guarantee any
loans, whether or not evidenced by negotiable instruments or securities, or
any notes, bonds, debentures, coupons or other similar evidences of
indebtedness for money borrowed (loans and notes, bonds, debentures, coupons
or other similar evidences of indebtedness for money borrowed being hereafter
in this Section 10.8 called "Debt"), secured after the date hereof by pledge
of, or mortgage or lien on, any Principal Property of the Company or any
Restricted Subsidiary or any shares of Capital Stock of or Debt of any
Restricted Subsidiary (mortgages, pledges and liens being hereinafter in this
Section 10.8 called "Mortgage" or "Mortgages"), without effectively providing
that the Securities (together with, if the Company shall so determine, any
other Debt of the Company or such Restricted Subsidiary then existing or
thereafter created which is not subordinate to the Securities) 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, unless
after giving effect thereto, the aggregate amount of all such secured Debt
plus all Attributable Debt of the Company and its Restricted Subsidiaries with
respect to sale and leaseback transactions to which Section 10.9 is applicable
would not exceed 10% of Consolidated Net Tangible Assets; provided,
--------
however, that this Section 10.8 shall not apply to, and there shall be excluded
- -------
from secured Debt in any computation under this Section 10.8, Debt secured by:
(a) Mortgages on property of, or on any shares of Capital Stock
of or Debt of, any corporation existing at the date hereof or at the time such
corporation becomes a Restricted Subsidiary;
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(b) Mortgages in favor of the Company or any Restricted
Subsidiary;
(c) Mortgages in favor of any governmental body to secure
progress, advance or other payment pursuant to any contract or provision of any
statute;
(d) Mortgages on property or assets, shares of Capital Stock or
Debt existing at the time of acquisition thereof (including acquisition through
merger or consolidation) or to secure the payment of all or any part of the
purchase price thereof or construction or development thereof or to secure any
Debt incurred prior to, at the time of, or within 180 days after the later of
the acquisition of such property or assets, shares of Capital Stock or Debt, or
the completion of construction or development, for the purpose of financing all
or any part of the purchase price thereof or construction or development
thereof;
(e) 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 or
construction or development of 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, includible (in whole or in part) 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;
(f) Mortgages created in connection with a project financed
with, and created to secure, a Nonrecourse Obligation. For this purpose,
"Nonrecourse Obligation" shall mean indebtedness or lease payment obligations
substantially related to (i) the construction or acquisition of assets not
currently owned as of ___________________, 19___, by the Company or any of its
Restricted Subsidiaries or (ii) the financing of a project involving the
development or expansion of properties of the Company or any of its Restricted
Subsidiaries, as to which the obligee with respect to such indebtedness or
obligation has no recourse to the general corporate funds of the Company or any
of its Restricted Subsidiaries or any assets of the Company or any of its
Restricted Subsidiaries other than (i) the assets which were acquired with the
proceeds of such transaction or the project financed with the proceeds of such
transaction or other assets comprising part of the project of which such
acquired assets are a part (and funds generated by such assets or project) and
(ii) the stock of any company or the partnership interests in any partnership
the only assets of which are assets included within the immediately preceding
clause (i) except pursuant to a covenant to pay to such obligee or to the
obligor of such indebtedness or obligation an amount equal to all or a portion
of the amount of any dividends received from such obligor within the previous 12
months; or
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(g) Any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any Mortgage
referred to in the foregoing clauses (a) to (f), inclusive; provided, however,
-------- -------
that such extension, renewal or replacement Mortgage shall be limited to all
or 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, however, that the sale or other transfer of the following shall
-------- -------
not be deemed to create secured Debt: (i) minerals in place for a period of
time until, or in an amount such that, the purchaser will realize therefrom a
specified amount of money (however determined) or a specified amount of such
minerals, or (ii) any other interest in property of the character commonly
referred to as a "production payment".
Section 10.9 Restriction on Sales and Leasebacks.
-----------------------------------
Subject to Section 3.1(n), the Company will not itself, and will not
permit any Restricted Subsidiary to, enter into any transaction after the date
hereof 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 Restricted Subsidiary of any Principal Property
which has been or is to be sold or transferred by the Company or such Restricted
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 secured Debt to which Section 10.8 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 10.9, Attributable Debt with respect to any sale and leaseback
transaction if:
(a) the lease in such sale and leaseback transaction is for a
period, including renewal rights, of not in excess of three years, or
(b) the Company or a Restricted Subsidiary, within 180 days
after the sale or transfer shall have been made by the Company or by a
Restricted 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 of the Company) to (a) 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 Restricted Subsidiary; provided, however, that
-------- -------
the amount to be applied to the retirement of such Funded Debt of the Company or
a Restricted Subsidiary shall be reduced by (x) the principal amount of any
Securities (or other notes or debentures constituting such 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),
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voluntarily retired by the Company or a Restricted Subsidiary within 180 days
after such sale; and provided, however, that, notwithstanding the foregoing, no
-------- -------
retirement referred to in this clause (a) may be effected by a payment at
maturity or pursuant to any mandatory sinking fund payment or any mandatory
prepayment provision, or (b) the purchase of other property which will
constitute Principal Property having a fair market value, in the opinion of the
Board of Directors of the Company, at least equal to the fair market value of
the Principal Property leased in such sale and leaseback transaction, or
(c) such sale and leaseback transaction is entered into prior
to, at the time of, or within 180 days after the later of the acquisition of the
Principal Property or the completion of construction thereon, or
(d) 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 acquisition or construction of 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, includible (in
whole or in part) 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
(e) the lease payment obligation is created in connection with
a project financed with, and such obligation constitutes, a Nonrecourse
Obligation as defined in Section 10.8(f), or
(f) such sale and leaseback transaction is entered into between
the Company and a Restricted Subsidiary or between Restricted Subsidiaries.
Section 10.10 Limitation on Subordinated Indebtedness.
---------------------------------------
The Company shall not issue, assume, guarantee, incur or otherwise
become liable, directly or indirectly, for any indebtedness which is subordinate
or junior in right of payment to any Senior Indebtedness unless such
indebtedness constitutes Securities or is pari passu or expressly subordinated
---- -----
in right of payment to any Securities.
Section 10.11 Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 10.6 to 10.10, 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
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waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE XI
Redemption of Securities
Section 11.1 Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any series)
in accordance with this Article.
Section 11.2 Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by 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 11.3 Selection by Trustee of Securities to be Redeemed.
-------------------------------------------------
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, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series.
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If less than 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 and specified tenor not previously called
for redemption in accordance with the preceding sentence.
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 11.4 Notice of Redemption.
--------------------
Notice of redemption shall be given in the manner provided in
Section 1.6, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Securities of any series
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,
(d) 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,
(e) the place or places where such Securities, together in the
case of Bearer Securities with all coupons appertaining thereto, are to be
surrendered for payment of the Redemption Price,
(f) that the redemption is for a sinking fund, if such is the
case.
(g) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be accompanied
by all coupons appertaining thereto maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be deducted
from the Redemption Price, or security or indemnity satisfactory to the Company,
the Trustee and any Paying Agent is furnished, and
(h) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on such Redemption Date pursuant to Section 3.5 or otherwise, the
last date, as determined by the Company, on which such exchanges may be made.
A notice of redemption as contemplated by Section 1.6 need not
identify particular Registered Securities to be redeemed. Notice of redemption
of Securities to be redeemed at the election of the Company shall be given by
the Company or, at the Company's request, by the Trustee in the name and at
the expense of the Company and shall be irrevocable.
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Section 11.5 Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 11.6 Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for
such interest appertaining to any Bearer Securities so to be redeemed, except
to the extent provided below, shall be redeemed. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
coupons appertaining thereto, if any, maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that, unless
-------- -------
otherwise specified as contemplated by Section 3.1, installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable
to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.7 and, provided
--------
further, that all payments on Bearer Securities shall be made only in the
- -------
manner provided in Section 10.2 for payments on Bearer Securities.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons appertaining thereto maturing after the
Redemption Date, such Security may be paid after deducting from the Redemption
Price an amount equal to the face amount of all such missing coupons
appertaining thereto, or the surrender of such missing coupon or coupons
appertaining thereto may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by coupons appertaining
thereto shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 10.2) and, unless
otherwise specified as contemplated by Section 3.1, only upon presentation and
surrender of those coupons appertaining thereto. If any Security called for
redemption shall not be so paid upon surrender thereof for redemption, the
principal and any premium shall, until paid, bear interest from the Redemption
Date at the rate prescribed therefor in the Security.
Section 11.7 Securities Redeemed in Part.
---------------------------
Any Registered Security which is to be redeemed only in part shall
be surrendered at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or 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 Registered Security or Securities
of the same series and of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
Section 11.8. Purchase of Securities.
Unless otherwise specified as contemplated by Section 3.1, the Company
and any Affiliate of the Company may at any time purchase or otherwise acquire
Securities or coupons appertaining thereto in the open market or by private
agreement; provided that purchases or other acquisitions of Bearer Securities or
coupons appertaining thereto by the Company or any Affiliate of the Company may
be made only outside the United States, and payments therefor may be made only
upon surrender of such Bearer Securities or coupons appertaining thereto at a
location outside the United States and only in the manner provided for payments
on Bearer Securities in Section 10.2. Such acquisition shall not operate as or
be deemed for any purpose to be a redemption of the indebtedness represented by
such Securities or coupons appertaining thereto. Any Securities or coupons
appertaining thereto purchased or acquired by the Company may be delivered to
the Trustee and, upon such delivery, the indebtedness represented thereby shall
be deemed to be satisfied. Section 3.9 shall apply to all Securities and
coupons so delivered.
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ARTICLE XII
Sinking Funds
Section 12.1 Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." 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 12.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 12.2 Satisfaction of Sinking Fund Payments With Securities.
-----------------------------------------------------
The Company (a) may deliver Outstanding Securities of a series
(other than any previously called for redemption), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (b) 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 12.3 Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 12.2 and will also deliver to the Trustee any Securities to
be so
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delivered. 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 11.3 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.
ARTICLE XIII
Defeasance and Covenant Defeasance
Section 13.1 Company's Option to Effect Defeasance or Covenant
-------------------------------------------------
Defeasance.
- ----------
The Company may elect, at its option by Board Resolution at any time,
to have either Section 13.2 or Section 13.3 applied to the Outstanding
Securities of any series designated pursuant to Section 3.1 as being defeasible
pursuant to this Article XIII (hereinafter called a "Defeasible Series"), upon
compliance with the conditions set forth below in this Article XIII provided
that Section 13.2 shall not apply to any series of Securities that is
convertible into Common Stock pursuant to Section 3.1(q) or convertible into or
exchangeable for any other securities pursuant to Section 3.1(r).
Section 13.2 Defeasance and Discharge.
------------------------
Upon the Company's exercise of the option provided in Section 13.1 to
have this Section 13.2 applied to the Outstanding Securities of any Defeasible
Series and subject to the proviso to Section 13.1, the Company shall be deemed
to have been discharged from its obligations with respect to the Outstanding
Securities of such series as provided in this Section on and after the date the
conditions set forth in Section 13.4 are satisfied (hereinafter called
"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 the Securities of such series and this Indenture insofar as
the Securities of such series are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), subject
to the following which shall survive until otherwise terminated or discharged
hereunder: (1) the right of Holders of Securities of such series to receive,
solely from the trust fund described in
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Section 13.4 and as more fully set forth in such Section, payments in respect of
the principal of and any premium and interest on such Securities of such series
when payments are due, (2) the Company's obligations with respect to the
Securities of such series under Sections 3.4, 3.5, 3.6, 10.2 and 10.3, (3) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (4)
this Article XIII. Subject to compliance with this Article XIII, the Company
may exercise its option provided in Section 13.1 to have this Section 13.2
applied to the Outstanding Securities of any Defeasible Series notwithstanding
the prior exercise of its option provided in Section 13.1 to have Section 13.3
applied to the Outstanding Securities of such series.
Section 13.3 Covenant Defeasance.
-------------------
Upon the Company's exercise of the option provided in Section 13.1 to
have this Section 13.3 applied to the Outstanding Securities of any Defeasible
Series, (1) the Company shall be released from its obligations under Sections
10.5 through 10.10, inclusive, and Section 8.1, and (2) the occurrence of any
event specified in Sections 5.1(c), 5.1(d) (with respect to any of Sections 10.5
through 10.10, inclusive, and Section 8.1), 5.1(e) and 5.1(h) shall be deemed
not to be or result in an Event of Default, in each case with respect to the
Outstanding Securities of such series as provided in this Section on and after
the date the conditions set forth in Section 13.4 are satisfied (hereinafter
called "Covenant Defeasance"). For this purpose, such Covenant Defeasance means
that 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 specified Section (to
the extent so specified in the case of Section 5.1(d)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and the Securities of
such series shall be unaffected thereby.
Section 13.4 Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of either Section
13.2 or Section 13.3 to the Outstanding Securities of any Defeasible Series:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 6.9 and agrees to comply with the
provisions of this Article XIII 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 Outstanding
Securities of such series (A) money in an amount, or (B) U.S. Government
Obligations that through the scheduled
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payment of principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, in each case sufficient, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of and any premium and
interest on the Securities of such series on the respective Stated Maturities in
accordance with the terms of this Indenture and the Securities of such series.
As used herein, "U.S. Government Obligation" means (x) any security that is (i)
a direct obligation of the United States of America for the payment of which
full faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933,
as amended) as custodian with respect to any U.S. Government Obligation
specified in Clause (x) and held by such custodian for the account of the holder
of such depositary receipt, or with respect to any specific payment of principal
of or interest on any such U.S. Government Obligation, provided that (except as
--------
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific
payment of principal or interest evidenced by such depositary receipt.
(b) In the case of an election under Section 13.2, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date first set forth hereinabove, there has
been a change in the applicable Federal income tax law, in either case (A) or
(B) to the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities of such series will not recognize gain or
loss for Federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to the Securities of such series and will
be subject to Federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit, Defeasance and discharge
were not to occur.
(c) In the case of an election under Section 13.3, 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 gain or
loss for Federal income tax purposes as a result of the deposit
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and Covenant Defeasance to be effected with respect to the Securities of such
series and will be subject to Federal income tax on the same amount, in the same
manner and at the same time as would be the case if such deposit and Covenant
Defeasance were not to occur.
(d) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities of such series, if then
listed on any securities exchange, will not be delisted as a result of such
deposit.
(e) No Event of Default or event that (after notice or lapse of
time or both) would become an Event of Default shall have occurred and be
continuing at the time of such deposit or, with regard to any Event of Default
or any such event specified in Sections 5.1(f) and (g), at any time on or prior
to the 90th day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 90th day).
(f) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust Indenture
Act (assuming all Securities are in default within the meaning of such Act).
(g) Such Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(h) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant Defeasance have
been complied with.
(i) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such trust
shall be qualified under such Act or exempt from regulation thereunder.
Section 13.5 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 10.3, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section and Section 13.6, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 13.4 in respect of the
Securities of any Defeasible Series shall be held in trust and applied by the
Trustee, in accordance with the provisions of the Securities of such series and
this Indenture, to the payment, either directly or through any such Paying Agent
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(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of Securities of such series, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law and shall not be subject to the claims of holders of
Senior Indebtedness.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 13.4 or the principal and interest received in
respect thereof other than any such tax, fee or other charge that by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article XIII 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 13.4 with respect to Securities of any Defeasible Series that, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Defeasance or Covenant Defeasance with respect to the
Securities of such series.
Section 13.6 Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article XIII 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 series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article XIII with respect to Securities of such series until such time as
the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to Section 13.5 with respect to Securities of such series in accordance
with this Article XIII; provided, however, that if the Company makes any payment
-------- -------
of principal of or any premium or interest on any Security of such series
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of Securities of such series to receive such
payment from the money so held in trust.
-72-
<PAGE>
ARTICLE XIV
Subordination of Securities
Section 14.1 Securities Subordinate to Senior Indebtedness.
---------------------------------------------
The Company covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article, the indebtedness
represented by the Securities and the payment of the principal of (and premium,
if any) and interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness.
Section 14.2 Payment Over of Proceeds Upon Dissolution, Etc.
-----------------------------------------------
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding
up of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of the Company, then and in any
such event the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness, or provision shall be made for such payment in money or
money's worth, before the Holders of the Securities are entitled to receive any
payment on account of principal of (or premium, if any) or interest on the
Securities, and to that end the holders of Senior Indebtedness shall be entitled
to receive, for application to the payment thereof, any payment or distribution
of any kind or character, whether in cash, property or securities, which may be
payable or deliverable in respect of the Securities in any such case,
proceeding, dissolution, liquidation or other winding up or event.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, before all Senior Indebtedness is paid
in full or payment thereof provided for, and if such fact shall, at or prior to
the time of such payment or distribution, have been made known to the Trustee
or, as the case may be, such Holder, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for application
to the payment of all Senior Indebtedness
-73-
<PAGE>
remaining unpaid, to the extent necessary to pay all Senior Indebtedness in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment which are subordinated
in right of payment to all Senior Indebtedness which may at the time be
outstanding to substantially the same extent as, or to a greater extent than,
the Securities are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the conveyance
or transfer of its properties and assets substantially as an entirety to another
Person upon the terms and conditions set forth in Article VIII shall not be
deemed a dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshalling of assets and liabilities of the Company
for the purposes of this Section if the Person formed by such consolidation or
into which the Company is merged or which acquires by conveyance or transfer
such properties and assets substantially as an entirety, as the case may be,
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions set forth in Article VIII.
Section 14.3 Prior Payment to Senior Indebtedness Upon Acceleration
------------------------------------------------------
of Securities.
- -------------
In the event that any Securities are declared due and payable before
their Stated Maturity, then and in such event the holders of Senior Indebtedness
outstanding at the time such Securities so become due and payable shall be
entitled to receive payment in full of all amounts due or to become due on or in
respect of such Senior Indebtedness, or, provision shall be made for such
payment in money or money's worth, before the Holders of the Securities are
entitled to receive any payment by the Company on account of the principal of
(or premium, if any) or interest on the Securities or on account of the purchase
or other acquisition of Securities; provided, however, that nothing in this
-------- -------
Section shall prevent the satisfaction of any sinking fund payment in accordance
with Article XII by delivering and crediting pursuant to Section 12.2 Securities
which have been acquired (upon redemption or otherwise) prior to such default.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
-74-
<PAGE>
The provisions of this Section shall not apply to any payment with
respect to which Section 14.2 would be applicable.
Section 14.4 No Payment When Senior Indebtedness in Default.
----------------------------------------------
In the event and during the continuation of any default in the payment
of principal of (or premium, if any) or interest on any Senior Indebtedness
beyond any applicable grace period with respect thereto, or in the event that
any event of default with respect to any Senior Indebtedness shall have occurred
and be continuing and shall have resulted in such Senior Indebtedness becoming
or being declared due and payable prior to the date on which it would otherwise
have become due and payable, unless and until such event of default shall have
been cured or waived or shall have ceased to exist and such acceleration shall
have been rescinded or annulled, or (b) in the event any judicial proceeding
shall be pending with respect to any such default in payment or event of
default, then no payment shall be made by the Company on account of principal of
(or premium, if any) or interest on the Securities or on account of the purchase
or other acquisition of Securities; provided, however, that nothing in this
-------- -------
Section shall prevent the satisfaction of any sinking fund payment in accordance
with Article XII by delivering and crediting pursuant to Section 12.2 Securities
which have been acquired (upon redemption or otherwise) prior to such default.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 14.2 would be applicable.
Section 14.5 Payment Permitted If No Default.
-------------------------------
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent the Company, at any time except during the
pendency of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 14.2 or under the conditions
described in Section 14.3 or 14.4, from making payments at any time of principal
of (and premium, if any) or interest on the Securities.
-75-
<PAGE>
Section 14.6 Subrogation to Rights of Holders of Senior Indebtedness.
-------------------------------------------------------
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Securities shall be subrogated (equally and ratably with the holders of
all indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the Securities
are subordinated and is entitled to like rights of subrogation) to the rights of
the holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest on the Securities shall be paid
in full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Indebtedness by Holders of the Securities
or the Trustee, shall, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities, be deemed to be a payment
or distribution by the Company to or on account of the Senior Indebtedness.
Section 14.7 Provisions Solely to Define Relative Rights.
-------------------------------------------
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Securities, the obligation
of the Company, which is absolute and unconditional (and which, subject to the
rights under this Article of the holders of Senior Indebtedness, is intended to
rank equally with all other general obligations of the Company), to pay to the
Holders of the Securities the principal of (and premium, if any) and interest on
the Securities as and when the same shall become due and payable in accordance
with their terms; or (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than the holders of
Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of the
holders of Senior Indebtedness to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.
-76-
<PAGE>
Section 14.8 Trustee to Effectuate Subordination.
-----------------------------------
Each holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 14.9 No Waiver of Subordination Provisions.
-------------------------------------
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.
Section 14.10 Notice to Trustee.
-----------------
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from any trustee therefor; and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 6.1, shall be entitled in all respects to assume that no
such facts exist; provided, however, that if the Trustee shall not have received
-------- -------
the notice provided
-77-
<PAGE>
for in this Section at least three Business Days prior to the date upon which by
the terms hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of (and premium, if any) or
interest on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purpose for which such money was received and
shall not be affected by any notice to the contrary which may be received by it
within three Business Days prior to such date.
Subject to the provisions of Section 6.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee
therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee therefor). In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
Section 14.11 Reliance on Judicial Order or Certificate of Liquidating
--------------------------------------------------------
Agent.
- -----
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 6.1, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article.
-78-
<PAGE>
Section 14.12 Trustee Not Fiduciary for Holders of Senior
-------------------------------------------
Indebtedness.
- ------------
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other Person cash, property or securities to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
or otherwise.
Section 14.13 Rights of Trustee as Holder of Senior Indebtedness;
---------------------------------------------------
Preservation of Trustee's Rights.
- --------------------------------
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.7.
Section 14.14 Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
--------
however, that Section 14.3 shall not apply to the Company or any Affiliate of
- -------
the Company if it or such Affiliate acts as Paying Agent.
Section 14.15 Trust Moneys Not Subordinated.
-----------------------------
Notwithstanding anything contained herein to the contrary, payments
from moneys or the proceeds of U.S. Government Obligations held in trust under
Article XIII by the Trustee for the payment of principal of, premium, if any,
and interest on the Securities from the date of deposit (if made in compliance
with this Indenture) shall not be subordinated to the prior payment of any
Senior Indebtedness or subject to the restraints set forth in this Article, and
none of the Securityholders shall be obligated to pay over any such amount to
the Company or any holder of Senior Indebtedness of the Company or any other
creditor of the Company.
------------------------------
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<PAGE>
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
CYPRUS AMAX MINERALS COMPANY
By:
---------------------------
---------------------------
---------------------------
Attest:
- --------------------
________________ NATIONAL
ASSOCIATION
By:
---------------------------
---------------------------
---------------------------
Attest:
- --------------------
STATE OF COLORADO )
) ss.
COUNTY OF ________ )
On the _____ day of _____________________, 1994, before me personally
came _______________, to me known, who, being by me duly sworn, did depose and
say that he is ______________________ of Cyprus Amax Minerals Company, 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.
-------------------------
Notary Public
-80-
<PAGE>
STATE OF __________ )
) ss.
COUNTY OF _________ )
On the _____ day of _________________, 1994, before me personally came
___________________, to me known, who, being by me duly sworn, did depose and
say that he is a _________________ of _____________________ National
Association, 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.
----------------------------
Notary Public
-81-
<PAGE>
===============================================================================
CYPRUS AMAX MINERALS COMPANY
TO
----------------------------------------
Trustee
----------
INDENTURE
Dated as of ___________, 1994
----------
Subordinated Securities
===============================================================================
<PAGE>
Cyprus Amax Minerals Company
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
(S) 310(a)(1) .............................. 6.9
(a)(2) .............................. 6.9
(a)(3) .............................. Not Applicable
(a)(4) .............................. Not Applicable
(b) .............................. 6.8
.............................. 6.10
(S) 311(a) .............................. 6.13
(b) .............................. 6.13
(S) 312(a) .............................. 7.1
.............................. 7.2
(b) .............................. 7.2
(c) .............................. 7.2
(S) 313(a) .............................. 7.3
(b) .............................. 7.3
(c) .............................. 7.3
(d) .............................. 7.3
(S) 314(a) .............................. 7.4
(a)(4) .............................. 1.1
.............................. 10.4
(b) .............................. Not Applicable
(c)(1) .............................. 1.2
(c)(2) .............................. 1.2
(c)(3) .............................. Not Applicable
(d) .............................. Not Applicable
(e) .............................. 1.2
(S) 315(a) .............................. 6.2
(b) .............................. 6.2
(c) .............................. 6.1
(d) .............................. 6.1
(e) .............................. 5.14
(S) 316(a) .............................. 1.1
(a)(1)(A) .............................. 5.2
.............................. 5.12
(a)(1)(B) .............................. 5.13
(a)(2) .............................. Not Applicable
(b) .............................. 5.8
(c) .............................. 1.4
(S) 317(a)(1) .............................. 5.3
(a)(2) .............................. 5.4
(b) .............................. 10.3
(S) 318(a) .............................. 1.7
- --------------------
</TABLE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS*
<TABLE>
<CAPTION>
Page
----
<S> <C>
PARTIES.................................................................... 1
RECITALS OF THE COMPANY.................................................... 1
ARTICLE I Definitions and Other Provisions
of General Application........................................ 1
Section 1.1 Definitions............................................. 1
Section 1.2 Compliance Certificates and Opinions.................... 11
Section 1.3 Form of Documents Delivered to Trustee.................. 11
Section 1.4 Acts of Holders; Record Dates........................... 12
Section 1.5 Notices, Etc., to Trustee and Company................... 15
Section 1.6 Notice to Holders; Waiver............................... 15
Section 1.7 Conflict with Trust Indenture Act....................... 16
Section 1.8 Effect of Headings and Table of Contents................ 17
Section 1.9 Successors and Assigns.................................. 17
Section 1.10 Separability Clause..................................... 17
Section 1.11 Benefits of Indenture................................... 17
Section 1.12 Governing Law........................................... 17
Section 1.13 Legal Holidays.......................................... 17
ARTICLE II Security Forms................................................ 18
Section 2.1 Forms Generally......................................... 18
Section 2.2 Form of Face of Registered Security..................... 19
Section 2.3 Form of Reverse of Registered Security.................. 20
Section 2.4 Form of Legend for Global Securities.................... 27
Section 2.5 Form of Trustee's Certificate of
Authentication.......................................... 28
ARTICLE III The Securities................................................ 28
Section 3.1 Amount Unlimited; Issuable in Series.................... 28
Section 3.2 Denominations........................................... 31
Section 3.3 Execution, Authentication, Delivery and
Dating.................................................. 31
Section 3.4 Temporary Securities.................................... 34
Section 3.5 Registration, Registration of Transfer
and Exchange............................................ 36
Section 3.6 Mutilated, Destroyed, Lost and Stolen
Securities.............................................. 39
Section 3.7 Payment of Interest; Interest Rights
Preserved............................................... 40
Section 3.8 Persons Deemed Owners................................... 42
Section 3.9 Cancellation............................................ 42
Section 3.10 Computation of Interest................................. 43
</TABLE>
*NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-i-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE IV Satisfaction and Discharge.................................... 43
Section 4.1 Satisfaction and Discharge of Indenture................. 45
Section 4.2 Application of Trust Money.............................. 45
ARTICLE V Remedies...................................................... 45
Section 5.1 Events of Default....................................... 45
Section 5.2 Acceleration of Maturity; Rescission and
Annulment............................................... 47
Section 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee.................................. 48
Section 5.4 Trustee May File Proofs of Claim........................ 49
Section 5.5 Trustee May Enforce Claims Without
Possession of Securities or Coupons.................... 50
Section 5.6 Application of Money Collected.......................... 50
Section 5.7 Limitation on Suits..................................... 50
Section 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest and to
Convert................................................. 51
Section 5.9 Restoration of Rights and Remedies...................... 51
Section 5.10 Rights and Remedies Cumulative.......................... 52
Section 5.11 Delay or Omission Not Waiver............................ 52
Section 5.12 Control by Holders...................................... 52
Section 5.13 Waiver of Past Defaults................................. 52
Section 5.14 Undertaking for Costs................................... 53
Section 5.15 Waiver of Usury, Stay or Extension Laws................. 53
ARTICLE VI The Trustee................................................... 54
Section 6.1 Certain Duties and Responsibilities..................... 54
Section 6.2 Notice of Defaults...................................... 54
Section 6.3 Certain Rights of Trustee............................... 54
Section 6.4 Not Responsible for Recitals or Issuance
of Securities........................................... 55
Section 6.5 May Hold Securities..................................... 56
Section 6.6 Money Held in Trust..................................... 56
Section 6.7 Compensation and Reimbursement.......................... 56
Section 6.8 Disqualification; Conflicting Interests................. 56
Section 6.9 Corporate Trustee Required; Eligibility................. 57
Section 6.10 Resignation and Removal; Appointment of
Successor............................................... 57
Section 6.11 Acceptance of Appointment by Successor.................. 59
Section 6.12 Merger, Conversion, Consolidation or
Succession to Business.................................. 60
Section 6.13 Preferential Collection of Claims Against
Company................................................. 60
Section 6.14 Appointment of Authenticating Agent..................... 60
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Page
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<S> <C>
ARTICLE VII Holders' Lists and Reports by Trustee and
Company....................................................... 62
Section 7.1 Company to Furnish Trustee Names and
Addresses of Holders.................................... 62
Section 7.2 Preservation of Information;
Communications to Holders............................... 63
Section 7.3 Reports by Trustee...................................... 63
Section 7.4 Reports by Company...................................... 64
ARTICLE VIII Consolidation, Merger, Conveyance, Transfer or
Lease......................................................... 64
Section 8.1 Company May Consolidate, Etc., Only on
Certain Terms........................................... 64
ARTICLE IX Supplemental Indentures....................................... 65
Section 9.1 Supplemental Indentures Without Consent
of Holders.............................................. 65
Section 9.2 Supplemental Indentures with Consent of
Holders................................................. 67
Section 9.3 Execution of Supplemental Indentures.................... 68
Section 9.4 Effect of Supplemental Indentures....................... 68
Section 9.5 Conformity with Trust Indenture Act..................... 69
Section 9.6 Reference in Securities to Supplemental
Indentures.............................................. 69
ARTICLE X Covenants..................................................... 69
Section 10.1 Payment of Principal, Premiums and
Interest................................................ 69
Section 10.2 Maintenance of Office or Agency......................... 69
Section 10.3 Money for Securities Payments to Be Held
in Trust................................................ 71
Section 10.4 Statement by Officers as to Default..................... 72
Section 10.5 Existence............................................... 73
Section 10.6 Maintenance of Properties............................... 73
Section 10.7 Payment of Taxes and Other Claims....................... 73
Section 10.8 Restrictions on Secured Debt............................ 73
Section 10.9 Restriction on Sales and Leasebacks..................... 75
Section 10.10 Waiver of Certain Covenants............................. 77
ARTICLE XI Redemption of Securities...................................... 77
Section 11.1 Applicability of Article................................ 77
Section 11.2 Election to Redeem; Notice to Trustee................... 78
Section 11.3 Selection by Trustee of Securities to be
Redeemed................................................ 78
Section 11.4 Notice of Redemption.................................... 79
Section 11.5 Deposit of Redemption Price............................. 80
Section 11.6 Securities Payable on Redemption Date................... 80
</TABLE>
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<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 11.7 Securities Redeemed in Part............................. 81
Section 11.8 Purchase of Securities.................................. 82
ARTICLE XII Sinking Funds................................................. 82
Section 12.1 Applicability of Article................................ 82
Section 12.2 Satisfaction of Sinking Fund Payments
with Securities......................................... 83
Section 12.3 Redemption of Securities for Sinking
Fund.................................................... 83
ARTICLE XIII Defeasance and Covenant Defeasance............................ 83
Section 13.1 Company's Option to Effect Defeasance or
Covenant Defeasance..................................... 83
Section 13.2 Defeasance and Discharge................................ 84
Section 13.3 Covenant Defeasance..................................... 84
Section 13.4 Conditions to Defeasance or Covenant
Defeasance.............................................. 85
Section 13.5 Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions................................ 87
Section 13.6 Reinstatement........................................... 88
ARTICLE XIV Conversion of Securities...................................... 88
Section 14.1 Applicability; Conversion Privilege and
Conversion Price........................................ 88
Section 14.2 Exercise of Conversion Privilege........................ 89
Section 14.3 Fractions of Shares..................................... 90
Section 14.4 Adjustment of Conversion Price.......................... 90
Section 14.5 Notice of Adjustments of Conversion
Price................................................... 94
Section 14.6 Notice of Certain Corporate Action...................... 94
Section 14.7 Company to Reserve Common Stock......................... 96
Section 14.8 Taxes on Conversions.................................... 96
Section 14.9 Covenant as to Common Stock............................. 96
Section 14.10 Cancellation of Converted Securities.................... 96
Section 14.11 Provisions in Case of Consolidation,
Merger or Sale of Assets................................ 96
Section 14.12 Responsibility of Trustee............................... 97
ARTICLE XV Subordination of Securities................................... 98
Section 15.1 Securities Subordinate to Senior
Indebtedness............................................ 98
Section 15.2 Payment Over of Proceeds Upon
Dissolution, Etc........................................ 98
Section 15.3 Prior Payment to Senior Indebtedness Upon
Acceleration of Securities.............................. 99
Section 15.4 No Payment When Senior Indebtedness in
Default................................................. 100
Section 15.5 Payment Permitted If No Default......................... 101
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Page
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<S> <C>
Section 15.6 Subrogation to Rights of Holders of
Senior Indebtedness..................................... 101
Section 15.7 Provisions Solely to Define Relative
Rights.................................................. 101
Section 15.8 Trustee to Effectuate Subordination..................... 102
Section 15.9 No Waiver of Subordination Provisions................... 102
Section 15.10 Notice to Trustee....................................... 103
Section 15.11 Reliance on Judicial Order or Certificate
of Liquidating Agent.................................... 104
Section 15.12 Trustee Not Fiduciary for Holders of
Senior Indebtedness..................................... 104
Section 15.13 Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's
Rights.................................................. 104
Section 15.14 Article Applicable to Paying Agents..................... 105
Section 15.15 Certain Conversions Deemed Payment...................... 105
Section 15.16 Trust Moneys Not Subordinated........................... 105
Exhibit A ........................................................ A-1
Exhibit B ........................................................ B-1
</TABLE>
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<PAGE>
INDENTURE, dated as of _____________, 1994, between Cyprus Amax
Minerals Company, a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its principal office
at 9100 East Mineral Circle, Englewood, Colorado 80112, and
______________________ a _________________________ duly organized and existing
under the laws of __________, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
This Indenture is subject to the provisions of the Trust Indenture Act
and the rules and regulations of the Commission promulgated thereunder that are
required to be part of this Indenture and, to the extent applicable, shall be
governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE I
Definitions and Other Provisions
of General Application
Section 1.1 Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) 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;
(c) 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
<PAGE>
accounting principles as are generally accepted at the date of such
computation;
(d) the words "Article" and "Section" refer to an Article and
Section, respectively, of this Indenture; and
(e) 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 Articles VI, X and XIII, are defined
in those Articles.
"Act," when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable and at any date as of which the amount thereof is
to be determined, the total net amount of rent required to be paid by such
Person under such lease during the remaining primary term thereof, discounted
from the respective due dates thereof to such date at the rate of 10 1/8% per
annum. The net amount of rent required to be paid under any such lease for any
such period shall be the aggregate amount of 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 after giving appropriate credit for lease payments payable to such
Person by any sublessee. In the case of any lease which is terminable by the
lessee upon the payment of a penalty, such net amount shall also include the
amount of such penalty, but 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 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form established pursuant
to Section 2.1 which is payable to bearer, including, without limitation, unless
the context otherwise indicates, a Security in temporary or permanent global
bearer form.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
-2-
<PAGE>
"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.
"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, from time
to time constituted, created under the Exchange Act 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" includes 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. However, subject
to the provisions of Section 3.1(q) and (r) and Section 14.11, shares issuable
on conversion of Securities shall include only shares of the class designated as
Common Stock of the Company at the date of this instrument or shares of any
class or classes resulting from any reclassification or reclassifications
thereof and which have 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 are not subject to redemption by the
Company; provided that if at any time there shall be more than one such
--------
resulting class, the shares of each such class then so issuable shall be
substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares of
all such classes resulting from all such reclassifications.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
-3-
<PAGE>
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, either of its
Co-Chairmen of the Board, its Vice 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 liabilities other than deferred income taxes,
liabilities resulting from any charge in connection with the adoption of
Statement of Financial Accounting Standards (SFAS) 106 "Employers' Accounting
for Postretirement Benefits Other Than Pensions," and Funded Debt and (ii) all
goodwill, trade names, trademarks, patents, organization expenses 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. Mine development costs and other similar assets
shall be not considered to be intangibles for this purpose.
"Corporate Trust Office" means the principal office of the Trustee in
_______________________________________ at which at any particular time its
corporate trust business shall be administered.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Covenant Defeasance" has the meaning specified in Section 13.3.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Defeasance" has the meaning specified in Section 14.2.
"Defeasible Series" has the meaning specified in Section 13.1.
"Depositary" means, with respect to the Securities of any series
issuable in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act as
Depositary for such Securities as contemplated in Section 3.1.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any statute successor thereto.
-4-
<PAGE>
"Funded Debt" means (i) all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the determination is
made or having a maturity of 12 months or less but by its terms being renewable
or extendable beyond 12 months from such date at the option of the borrower and
(ii) rental obligations payable more than 12 months from such date under leases
which are capitalized in accordance with generally accepted accounting
principles (such rental obligations to be included as Funded Debt at the amount
so capitalized and to be included for the purposes of the definition of
Consolidated Net Tangible Assets both as an asset and as Funded Debt at the
amount so capitalized).
"Global Security" means a Security that evidences all or part of the
Securities of any series and is authenticated and delivered to the Depositary
for such Securities or a nominee thereof. Global Securities may be issued in
either registered or bearer form and in either temporary or permanent form.
Permanent Global Securities will be issued in definitive form.
"Holder", when used with respect to any Security, means in the case of
a Registered Security the Person in whose name the Security is registered in the
Security Register and in the case of a Bearer Security the bearer thereof and,
when used with respect to any coupon, means the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated in Section 3.1.
"interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 5.1(d).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, either of its Co-Chairmen of the Board, a Vice Chairman of the Board,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, of the Company, and
-5-
<PAGE>
delivered to the Trustee. One of the officers signing an Officers Certificate
given pursuant to Section 10.4 shall be the principal executive, financial or
accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, 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 5.2.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(2) 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 and coupons appertaining
thereto, if any; 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;
(3) Securities as to which Defeasance has been effected pursuant to
Section 13.2; and
(4) Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (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 acceleration of the Maturity
thereof to such date pursuant to Section 5.2, (B) the principal amount of a
Security denominated in one or more foreign currencies or currency units
-6-
<PAGE>
shall be the U.S. dollar equivalent, determined in the manner provided as
contemplated by Section 3.1 on the date of original issuance of such Security,
of the principal amount (or, in the case of an Original Issue Discount Security,
the U.S. dollar equivalent on the date of original issuance of such Security of
the amount determined as provided in Clause (A) above) of such Security, and (C)
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.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, 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 any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any mine, mill, converting plant,
manufacturing plant, or other substantial facility owned at the date hereof or
hereafter acquired by the Company or any Restricted Subsidiary of the Company
which is located within the present 50 States of the United States of America
and the gross book value (including related land and improvements thereon, any
minerals or mineral rights and all machinery and equipment included therein
without deduction of any depreciation reserves) of which on the date as of which
the determination is being made exceeds 2-1/2% of Consolidated Net Tangible
Assets, other than (i) any property which in the opinion of the Board of
Directors
-7-
<PAGE>
of the Company is not of material importance to the total business conducted by
the Company as an entirety or (ii) any portion of a particular property which is
similarly found not to be of material importance to the use or operation of such
property.
"Realty Subsidiary" means a Subsidiary of the Company engaged
primarily in the development and sale or financing of real property.
"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.
"Registered Security" means any Security in the form established
pursuant to Article II which is registered in the Security Register.
"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 3.1.
"Responsible Officer," when used with respect to the Trustee, means
the chairman or any co-chairman or vice-chairman of the board of directors, the
chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" means a Subsidiary of the Company (i)
substantially all the property of which is located, or substantially all the
business of which is carried on, within the present 50 States of the United
States of America and (ii) which owns a Principal Property, but does not include
a Realty Subsidiary.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest on (a) all indebtedness of the Company (including indebtedness of
others guaranteed by the
-8-
<PAGE>
Company) other than the Securities, which is (i) for money borrowed or (ii)
evidenced by a note or similar instrument given in connection with the
acquisition of any businesses, properties or assets of any kind, (b) obligations
of the Company as lessee under leases required to be capitalized on the balance
sheet of the lessee under generally accepted accounting principles and (c)
amendments, renewals, extensions, modifications and refundings of any such
indebtedness or obligation, in any such case whether outstanding on the date of
this Indenture or thereafter created, incurred or assumed, unless in any case in
the instrument creating or evidencing any such indebtedness or obligation or
pursuant to which the same is outstanding it is provided that such indebtedness
or obligation is not superior in right of payment to the Securities or it is
provided that such obligation is subordinated to senior indebtedness to
substantially the same extent as the Securities are subordinated to Senior
Indebtedness.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest 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.
"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.
"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 each Trustee with respect to
Securities of that series.
-9-
<PAGE>
"U.S. Government Obligations" has the meaning specified in Section
13.4.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
Section 1.2 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 such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
provided for in Section 10.4) shall include
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of 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
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3 Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and
-10-
<PAGE>
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 is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company or any subsidiary of
the Company stating that the information with respect to such factual matters is
in the possession of the Company or any subsidiary of the Company, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give, or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.4 Acts of Holders; Record Dates.
-----------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted 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 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 6.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
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
-11-
<PAGE>
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.
The ownership of Securities shall be proved by the Security Register.
The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Trustee to be satisfactory.
The Trustee and the Company may assume that such ownership of any Bearer
Security continues until (1) another certificate bearing a later date issued
in respect of the same Bearer Security is produced, (2) such Bearer Security
is produced to the Trustee by some other Person, (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding. The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may also be
proved in any other manner which the Trustee deems sufficient.
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.
The Company may, in the circumstances permitted by the Trust Indenture
Act, set any day as the record date for the purpose of determining the Holders
of Outstanding Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given or taken by Holders of
Securities of such series. With regard to any record date set pursuant to this
paragraph, the Holders of Outstanding Securities of the relevant series on such
record date (or their duly appointed agents), and only such Persons, shall be
entitled to give or take the relevant action, whether or not such Holders remain
Holders after such record date. With regard to any action that may be given or
taken hereunder only by Holders of a requisite principal amount of Outstanding
Securities of any series (or their duly appointed agents) and for which a record
date is set pursuant to this paragraph, the Company may, at its option, set an
expiration date after which no such action purported to be given or taken by any
Holder shall be effective hereunder unless given or taken on or prior to such
expiration date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly appointed agents).
On or prior to any expiration date set pursuant to this paragraph, the Company
may, on one or more occasions at its option, extend such date to any later date.
Nothing in this paragraph shall prevent any Holder (or any duly appointed agent
thereof) from giving or taking, after any such expiration date, any action
identical to, or, at any time, contrary to or different from, the action or
purported action to which such expiration date relates, in which event the
Company may set a record date in respect thereof pursuant to this paragraph.
Nothing in this paragraph shall be construed to render ineffective any action
taken at any time by the Holders (or their duly appointed agents) of the
requisite principal amount of Outstanding Securities of the relevant series on
the date such action is so taken. Notwithstanding the foregoing or the Trust
Indenture Act, the Company shall not set a record date for, and the provisions
of this paragraph shall not apply with
-12-
<PAGE>
respect to, any notice, declaration or direction referred to in the next
paragraph.
Upon receipt by the Trustee from any Holder of Securities of a
particular series of (i) any written notice of default or breach referred to in
Section 5.1(d) or 5.1(e) with respect to Securities of such series, if such
default or breach has occurred and is continuing and the Trustee shall not have
given such written notice to the Company, (ii) any declaration of acceleration
referred to in Section 5.2, if an Event of Default with respect to Securities of
such series has occurred and is continuing and the Trustee shall not have given
such a declaration to the Company, or (iii) any direction referred to in Section
5.12 with respect to Securities of such series, if the Trustee shall not have
taken the action specified in such direction, then a record date shall
automatically and without any action by the Company or the Trustee be set for
determining the Holders of Outstanding Securities of such series entitled to
join in such notice, declaration or direction, which record date shall be the
close of business on the tenth day following the day on which the Trustee
receives such notice, declaration or direction. Promptly after such receipt by
the Trustee, and in any case not later than the fifth day thereafter, the
Trustee shall notify the Company and the Holders of Outstanding Series of such
series of any such record date so fixed. The Holders of Outstanding Securities
of such series on such record date (or their duly appointed agents), and only
such Persons, shall be entitled to join in such notice, declaration or
direction, whether or not such Holders remain Holders after such record date;
provided that, unless such notice, declaration or direction shall have become
- --------
effective by virtue of Holders of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly appointed agents)
having joined therein on or prior to the 90th day after such record date, such
notice, declaration or direction shall automatically and without any action by
any Person be cancelled and of no further effect. Nothing in this paragraph
shall be construed to prevent a Holder (or a duly appointed agent thereof) from
giving, before or after the expiration of such 90-day period, a notice,
declaration or direction contrary to or different from, or, after the expiration
of such period, identical to, the notice, declaration or direction to which such
record date relates, in which event a new record date in respect thereof shall
be set pursuant to this paragraph. Nothing in this paragraph shall be construed
to render ineffective any notice, declaration or direction of the type referred
to in this paragraph given at any time to the Trustee and the Company by Holders
(or their duly appointed agents) of the requisite principal amount of
Outstanding Securities of the relevant series on the date such notice,
declaration or direction is so given.
Without limiting the foregoing, a Holder entitled hereunder to give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of
-13-
<PAGE>
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
different part of such principal amount.
Section 1.5 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,
(a) 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:
____________________, or
(b) 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 or at any other address previously
furnished in writing to the Trustee by the Company.
Section 1.6 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) (i) to Holders of Registered Securities 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 (if any), and not earlier than the earliest date (if
any), 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, and (ii) to
Holders of Bearer Securities if published in an Authorized Newspaper in
the City of New York and London or other capital city in Western Europe
and in such other city or cities as may be specified in such Bearer
Securities on a Business Day at least twice, the first such publication
to be not earlier than the earliest date (if any), and not later than the
latest date (if any), prescribed for the giving of 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 regular mail service or by
reason of any other cause it shall be impracticable to give such notice
to Holders of Registered Securities by mail, then such notification as
shall be made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder. In any case in which
notice to Holders of Registered Securities is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder of a Registered Security, shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein.
In case by reason of the suspension of any Authorized Newspaper or
Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as
shall be made with the approval of the Trustee for such Securities shall
constitute sufficient notice to such Holders for every purpose hereunder.
Neither the failure to give notice by publication to Holders of Bearer
Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of any notice to Holders of Registered
Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent
of such notice. Waivers of notice by Holders 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.
-14-
<PAGE>
Section 1.7 Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
Section 1.8 Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.9 Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 1.10 Separability Clause.
-------------------
In case any provision in this Indenture or 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 1.11 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, [the holders of Senior Indebtedness] and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 1.12 Governing Law.
-------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
-15-
<PAGE>
Section 1.13 Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security or the last date on which a Holder has the right to
convert his Securities shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Securities,
other than a provision of the Securities of any series which specifically states
that such provision shall apply in lieu of this Section) payment of interest or
principal (and premium, if any) or conversion of the Securities need not be made
at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date or Redemption Date, or at the Stated Maturity, or
on such last day for conversion, provided that no interest shall accrue for the
--------
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
ARTICLE II
Security Forms
Section 2.1 Forms Generally.
---------------
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons appertaining thereto
shall be in substantially the form set forth in this Article, or in such other
form as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
and coupons appertaining thereto, if any, as evidenced by their execution of
the Securities and coupons appertaining thereto, if any. If temporary
Securities of any series are issued in global form as permitted by Section
3.4, the form thereof shall be established as provided in the preceding
sentence. If the form of Securities of any series and coupons appertaining
thereto, if any, 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 3.3 for the authentication and delivery of such Securities (or any
such temporary global security) and coupons appertaining thereto, if any.
Unless oterwise specified as contemplated by Section 3.1, Bearer
Securities shall have inerest coupons appertaining thereto attached.
The definitive Securities and coupons appertaining thereto, if any,
shall be printed, lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
-16-
<PAGE>
Section 2.2 Form of Face of Registered Security.
-----------------------------------
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
CYPRUS AMAX MINERALS COMPANY
________________________________________
No. _________ $____________
Cyprus Amax Minerals Company, a corporation duly organized and
existing under the laws of Delaware (herein called the "Company," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ____________________________________,
or registered assigns, the principal sum of __________________________________
Dollars on ________________________________________ [if the Security is to bear
--------------------------
interest prior to Maturity, insert -- , and to pay interest thereon from
- ----------------------------------
____________ or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually on ____________ and ____________
in each year, commencing _________, at the rate of ____% per annum, until the
principal hereof is paid or made available for payment [if applicable, insert --
---------------------
, and at the rate of ____% per annum on any overdue principal and premium and on
any overdue installment of interest]. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the _______ or _______
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert --
-----------------------------------------------------------------
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ____% per annum which shall accrue from
-17-
<PAGE>
the date of such default in payment to the date payment of such principal has
been made or duly provided for. Interest on any overdue principal shall be
payable on demand. Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of ______% per annum which shall
accrue from the date of such demand for payment to the date payment of such
interest has been made or duly provided for, and such interest shall also be
payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
--------------
insert -- any such] interest on this Security will be made at the office or
- ------
agency of the Company maintained for that purpose in ____________, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert -- ;
---------------------
provided, however, that at the option of the Company payment of interest may be
- -------- -------
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
CYPRUS AMAX MINERALS COMPANY
By
-------------------------------
Attest:
- ----------------------------
Section 2.3 Form of Reverse of Registered Security.
--------------------------------------
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of _____________, 1994 (herein called the
"Indenture"),
-18-
<PAGE>
between the Company and ___________________, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee, the holders of Senior
Indebtedness and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof [if applicable, insert --,
---------------------
limited in aggregate principal amount to $___________].
[If applicable, insert -- Subject to and upon compliance with the
---------------------
provisions of the Indenture, the Holder of this Security is entitled, at his
option, at any time on or before the close of business on ____________, or in
case this Security or a portion hereof is called for redemption, then in respect
of this Security or such portion hereof until and including, but (unless the
Company defaults in making the payment due upon redemption) not after, the close
of business on the 10th calendar day before the Redemption Date, to convert this
Security (or any portion of the principal amount hereof which is $1,000 or an
integral multiple thereof), at the principal amount hereof, or of such portion,
into fully paid and non-assessable shares (calculated as to each conversion to
the nearest 1/100 of a share) of Common Stock of the Company at a conversion
price per share of Common Stock equal to $_____ per each share of Common Stock
(or at the current adjusted conversion price if an adjustment has been made as
provided in the Indenture) by surrender of this Security, duly endorsed or
assigned to the Company or in blank, to the Company at its office or agency in
_______________, accompanied by written notice to the Company that the Holder
hereof elects to convert this Security, or if less than the entire principal
amount hereof is to be converted, the portion hereof to be converted, and, in
case such surrender shall be made during the period from the close of business
on any Regular Record Date next preceding any Interest Payment Date to the
opening of business on such Interest Payment Date (unless this Security or the
portion thereof being converted has been called for redemption on a Redemption
Date within such period), also accompanied by payment in __________ Clearing
House or other funds acceptable to the Company of an amount equal to the
interest payable on such Interest Payment Date on the principal amount of this
Security then being converted. Subject to the aforesaid requirement for payment
and, in the case of a conversion after the Regular Record Date next preceding
any Interest Payment Date and on or before such Interest Payment Date, to the
right of the Holder of this Security (or any Predecessor Security) of record at
such Regular Record Date to receive an installment of interest (with certain
exceptions provided in the Indenture), no payment or adjustment is to be made on
conversion for interest accrued hereon or for dividends on the Common Stock
issued on conversion. No fractions of shares or scrip representing fractions of
shares will be issued on
-19-
<PAGE>
conversion, but instead of any fractional interest the Company shall pay a cash
adjustment as provided in the Indenture. The conversion price is subject to
adjustment as provided in the Indenture. In addition, the Indenture provides
that in case of certain consolidations or mergers to which the Company is a
party or the transfer of substantially all of the assets of the Company, the
Indenture shall be amended, without the consent of any Holders of Securities, so
that this Security, if then outstanding, will be convertible thereafter, during
the period this Security shall be convertible as specified above, only into the
kind and amount of securities, cash and other property receivable upon the
consolidation, merger or transfer by a holder of the number of shares of Common
Stock into which this Security might have been converted immediately prior to
such consolidation, merger or transfer (assuming such holder of Common Stock
failed to exercise any rights of election and received per share the kind and
amount received per share by a plurality of non-electing shares).]
[If applicable, insert -- The Securities are not otherwise subject to
---------------------
redemption prior to maturity and no sinking fund is provided for the
Securities.]
[If applicable, insert -- The Securities of this series are subject to
---------------------
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
---------------------
(1) on ____________ in any year commencing with the year ______ and ending with
the year ______ through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
--
applicable, insert -- on or after __________, 19__], as a whole or in part, at
- ------------------
the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert -- on
---------------------
or before ________________, __%, and if redeemed] during the 12-month period
beginning ______________ of the years indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
---------------------
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to
-20-
<PAGE>
such Redemption Date will be payable to the Holders of such Securities, or one
or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
---------------------
redemption upon not less than 30 days' notice by mail, (1) on ____________ in
any year commencing with the year ____ and ending with the year ____ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
--
applicable, insert -- on or after ____________], as a whole or in part, at the
- ------------------
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ____________ of the years indicated,
<TABLE>
<CAPTION>
Redemption Price For Redemption Price For
Redemption Through Redemption Otherwise
Operation of the Than Through Operation
Year Sinking Fund of the Sinking Fund
------ -------------------- -----------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company
---------------------
may not, prior to _____________, redeem any Securities of this series as
contemplated by (if applicable, insert -- Clause (2) of] the preceding paragraph
---------------------
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than _____% per annum.]
[If applicable, insert -- The sinking fund for this series provides
---------------------
for the redemption on ____________ in each year beginning with the year _______
and ending with the year ______
-21-
<PAGE>
of [if applicable, insert -- not less than $__________ ("mandatory sinking
---------------------
fund") and not more than] $_________ aggregate principal amount of Securities of
this series. Securities of this series acquired or redeemed by the Company
otherwise than through [if applicable, insert -- mandatory] sinking fund
---------------------
payments [if applicable, insert -- and Securities surrendered for conversion]
---------------------
may be credited against subsequent [if applicable, insert -- mandatory] sinking
---------------------
fund payments otherwise required to be made [if applicable, insert -- in the
---------------------
inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert -- In
------------------------------------------------------------
the event of redemption or conversion of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed or
unconverted portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.]
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take action
as may be necessary or appropriate to effectuate the subordination so provided
and (c) appoints the Trustee his attorney-in-fact for any and all such purposes.
[If applicable, insert -- The Indenture contains provisions for
---------------------
defeasance at any time of [(1) the entire indebtedness of this Security or (2)]
certain restrictive covenants and Events of Default with respect to this
Security, in each case upon compliance with certain conditions set forth in the
Indenture.]
[If the Security is not an Original Issue Discount Security, insert --
------------------------------------------------------------------
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
--------------------------------------------------------------
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to --insert formula for determining the
----------------------------------
amount. Upon payment (i) of the amount of principal so declared due and payable
- ------
and (ii) of interest on any overdue principal and overdue interest all of the
Company's obligations in respect of the payment of the principal
-22-
<PAGE>
of and interest, if any, on the Securities of this series shall terminate.]
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 Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or any premium or
interest hereon on or after the respective due dates expressed herein.
Subject to the rights of holders of Senior Indebtedness, as set forth
in the Indenture, no other reference herein to the Indenture and no other
provision of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this Security at the times,
place and rate, and in the coin or currency, herein prescribed or to convert
this Security as provided in the Indenture.
-23-
<PAGE>
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of [$1,000] and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
[If applicable, insert --
---------------------
[FORM OF CONVERSION NOTICE]
To: CYPRUS AMAX MINERALS COMPANY
The undersigned owner of this Security hereby irrevocably exercises
the option to convert this Security, or portion hereof (which is $1,000 or an
integral multiple thereof) below designated, into shares of Common Stock of
Cyprus Amax Minerals Company in accordance with the terms of the Indenture
referred to in this Security, and directs that the shares issuable and
deliverable upon the conversion, together with any check in payment for
fractional shares and any Securities,
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<PAGE>
representing any unconverted principal amount hereof, be issued and delivered to
the registered holder hereof unless a different name has been indicated below.
If shares are to be issued in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto. Any
amount required to be paid by the undersigned on account of interest accompanies
this Security.
Dated:
Fill in for registration of
shares of Common Stock and
Securities if to be issued
otherwise than to the
registered holder.
Principal Amount to be converted (in an
integral multiple of $1,000, if less
than all):
$
- ------------------------------
Name
- ------------------------------
Address
- ------------------------------- ----------------------------------
(Please print name and Signature
address, including zip code
number)
SOCIAL SECURITY OR OTHER
TAXPAYER IDENTIFYING
NUMBER
[SIGNATURE GUARANTEED --required only if
Common Stock and Securities are to be issued
and delivered to other than registered
holder]
]
- ------------------------------
Section 2.4 Form of Legend for Global Securities.
------------------------------------
Every Global Security authenticated and delivered hereunder shall bear
a legend in substantially the following form:
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary
or a nominee thereof. This Security may not be transferred to, or
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<PAGE>
registered or exchanged for Securities registered in the name of, any
Person other than the Depositary or a nominee thereof and no such
transfer may be registered, except in the limited circumstances
described in the Indenture. Every Security authenticated and
delivered upon registration of transfer of, or in exchange for or in
lieu of, this Security shall be a Global Security subject to the
foregoing, except in such limited circumstances.
Section 2.5 Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
---------------------------------
As Trustee
By
-------------------------------
Authorized Signatory
ARTICLE III
The Securities
Section 3.1 Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 3.3,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(b) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7
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<PAGE>
and except for any Securities which, pursuant to Section 3.3, are deemed
never to have been authenticated and delivered hereunder);
(c) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether any Securities of the
series are to be issuable initially in temporary global form and whether
any Securities of the series are to be issuable in permanent global form
or otherwise, with or without coupons appertaining thereto and, if so,
whether beneficial owners of interests in any such permanent Global
Security may exchange such interests for Securities of such series and of
like tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 3.5, and the Depositary for any Global Security or
Securities;
(d) the manner in which, or the Person to whom, any interest on any
Bearer Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature and the extent to which, or the manner in which, any
interest payable on a temporary Global Security on any Interest Payment
Date will be paid if other than in the manner provided in Section 3.5;
(e) the date or dates on which the principal of the Securities of the
series is payable;
(f) the rate or rates 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 any such interest shall be
payable and the Regular Record Date for any interest payable on any
Interest Payment Date;
(g) the place or places where the principal of and any premium and
interest on Securities of the series shall be payable;
(h) 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;
(i) 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;
(j) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(k) the currency, currencies or currency units in which payments of
the principal of and any premium and interest on any Securities of the
series shall be payable if other than the currency of the United States of
America and the manner of determining the equivalent thereof in the
currency of the United States of America for purposes of the definition of
"Outstanding" in Section 1.1;
(l) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with reference
to an index, the manner in which such amounts shall be determined;
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<PAGE>
(m) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or a
Holder thereof, in one or more currencies or currency units other than
that or those in which the Securities are stated to be payable, the
currency, currencies or currency units in which payment of the principal
of and any premium and interest on Securities of such series as to which
such election is made shall be payable, and the periods within which and
the terms and conditions upon which such election is to be made;
(n) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
5.2;
(o) the applicability, nonapplicability, or variation, of Article
XIII with respect to the Securities of such Series;
(p) if applicable, that the Securities of the series shall be subject
to either or both of Defeasance or Covenant Defeasance as provided in
Article XIII; provided that no series of Securities that is convertible
--------
into Common Stock as provided in Article XIV or convertible into or
exchangeable for any other securities pursuant to Section 3.1(r) shall be
subject to Defeasance pursuant to Section 13.2;
(q) if and as applicable, that the Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the Depositary or Depositaries for such Global Security
or Global Securities and any circumstances other than those set forth in
Section 3.5 in which any such Global Security may be transferred to, and
registered and exchanged for Securities registered in the name of, a Person
other than the Depositary for such Global Security or a nominee thereof and
in which any such transfer may be registered;
(r) the terms and conditions, if any, pursuant to which the
Securities are convertible into Common Stock of the Company pursuant to
Article XIV, and any variation thereof;
(s) the terms and conditions, if any, pursuant to which the
Securities are convertible into or exchangeable for any other securities;
and
(t) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.1(e)).
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<PAGE>
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 3.3) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 3.2 Denominations.
-------------
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 3.1. In the
absence of any such specified denomination 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 3.3 Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, either of its Co-Chairmen of the Board, its Vice Chairman
of the Board, its President or one of its Vice Presidents, under its corporate
seal reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile. Coupons shall bear the facsimile signature of the
Chairman of the Board, President, Treasurer or any Vice President of the
Company.
Securities and coupons appertaining thereto 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, together
with any coupons appertaining thereto, executed by the Company to the Trustee
for authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities as in this Indenture
provided and not otherwise; provided, however, that, in connection with its
sale, during the "restricted period" (as defined in Section 1.163-
5(c)(2)(i)(D)(7) of the United States Treasury Regulations), no Bearer
Security shall be mailed or otherwise delivered to any location in the United
States; and provided, further, that a Bearer Security may (other than a
temporary Global Security in bearer form delivered as provided in Section 3.5)
be delivered outside the United States in connection with its original
issuance and only if the Person entitled to receive such Bearer Security shall
have furnished a certificate in the form set forth in Exhibit A to this
Indenture, or in such other form of certificate as shall contain information
then required by federal income tax laws and, if applicable, federal
securities laws, dated no earlier than the Certification Date. If any Security
shall be presented by a permanent global Bearer Security, then, for purposes
of this Section and Section 3.5, the notation of a beneficial owner's interest
therein upon original issuance of such Security or upon exchange of a portion
of a temporary Global Security shall be deemed to be delivery in connection
with sale, during the "restricted period" (as defined in Section 1.163-
5(c)(2)(i)(D)(7) of the United States Treasury Regulations) of such beneficial
owner's interest in such permanent Global Security. Except as permitted by
Section 3.6, the Trustee shall not authenticate and deliver any Bearer
Security unless all appurtenant coupons for interest then matured have been
detached and cancelled. If 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 2.1 and 3.1, 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
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<PAGE>
(subject to Section 6.1) 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 2.1, 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 3.1, 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 3.1 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 Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date of
issuance of the first Bearer Security of such series to be issued.
No Security or coupons appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Security, or the Security to which such coupon
appertains, a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder.
Notwithstanding the foregoing, if any Security shall have been authenticated
and delivered hereunder but never issued
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<PAGE>
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 3.9, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 3.4 Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued in registered form or, if authorized, in bearer form with one or
more coupons appertaining thereto or without coupons, 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. In the case of any series issuable as Bearer
Securities, such temporary Securities may be in global form. A temporary
Bearer Security shall be delivered only in compliance with the conditions set
forth in Section 3.3.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs),
if temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor; provided
--------
however that no Bearer Security shall be issued in exchange for a temporary
- -------
Registered Security; and provided, further, that a definitive Bearer Security
-------- -------
(including interests in a permanent Global Security) shall be delivered in
exchange for a temporary Bearer Security only in compliance with the
conditions set forth in Section 3.3.
Any temporary global Bearer Security and any permanent global Bearer
Security shall, unless otherwise provided therein, be delivered to the London
office of a depositary or common depositary (the "Common Depositary") for the
benefit of [Euroclear and CEDEL S.A.] for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Bearer Security of a series (the "Exchange Date"), the Company shall deliver to
the Trustee definitive Securities of that series in aggregate principal amount
equal to the principal amount of such temporary global Bearer Security, executed
by the Company. On or after the Exchange Date such temporary global Bearer
Security shall be surrendered by the Common Depositary to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities of that series without charge and the Trustee
shall authenticate and deliver, in exchange for each portion of such temporary
global Bearer Security, a like aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such temporary global Bearer Security to be exchanged; provided
--------
however, that unless otherwise specified in such temporary global Bearer
- -------
Security, no such definitive Securities shall be delivered unless, upon such
presentation by the Common Depositary, such temporary global Bearer Security is
accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by [Euroclear] as to the portion of such temporary global Bearer Security
held for its account then to be exchanged and a certificate dated the Exchange
Date or a subsequent date and signed by [CEDEL S.A.] as to the portion of such
temporary global Bearer Security held for its account then to be exchanged, each
in the form set forth in Exhibit B to this Indenture. The definitive Securities
to be delivered in exchange for any such temporary global Bearer
Security shall be in bearer form, registered form, permanent global bearer form
or permanent global registered form, or any combination thereof, as specified as
contemplated by Section 3.1, and if any combination thereof is so specified, as
requested by the beneficial owner thereof.
Unless otherwise specified in the temporary global Bearer Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Bearer Security shall be exchanged on or after the Exchange Date for
definitive Securities (and where the form of the definitive Securities is not
specified by the Holder for an interest in a permanent Global Security) of the
same series and of like tenor upon delivery by such beneficial owner to
[Euroclear or CEDEL S.A.], as the case may be, of a certificate in the form set
forth in Exhibit A to this Indenture dated no earlier than the Certification
Date, copies of which certificate shall be available from the offices of
[Euroclear and CEDEL S.A.], the Trustee, any Authenticating Agent appointed for
such series of Securities and each Paying Agent. Unless otherwise specified in
such temporary global Bearer Security, any exchange shall be made free of charge
to the beneficial owners of such temporary global Bearer Security, except that a
Person receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the office of [Euroclear or CEDEL
S.A.]. Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary global Bearer Security shall be delivered only outside
the United States.
All Outstanding temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and delivered
hereunder, except that, unless otherwise specified as contemplated by Section
3.1, interest payable on a temporary global Bearer Security on an Interest
Payment Date for Securities of such series shall be payable to [Euroclear and
CEDEL S.A.] on such Interest Payment Date upon delivery by [Euroclear and CEDEL
S.A.] to the Trustee of a certificate or certificates in the form set forth in
Exhibit B to this Indenture, for credit without further interest on or after
such Interest Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary global Bearer Security on such Interest
Payment Date and who have each delivered to [Euroclear or CEDEL S.A.], as the
case may be a certificate in the form set forth in Exhibit A to this indenture.
Any interest so received by [Euroclear and CEDEL S.A.] and not paid as herein
provided shall be returned to the Trustee immediately prior to the expiration of
two years after such Interest Payment Date in order to be repaid to the Company
in accordance with Section 10.3.
Section 3.5 Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein
provided.
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<PAGE>
Upon surrender for registration of transfer of any Registered
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 Registered Securities of the same series, of any authorized denominations
and of a like aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the Registered Securities to be exchanged at 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. A Holder of
Registered Securities cannot have Bearer Securities issued in exchange for
such Registered Securities.
At the option of the Holder of Bearer Securities of any series, such
Bearer Securities may be exchanged for Registered Securities of the same series
of any authorized denominations and of a like aggregate principal amount and
tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in
default thereto appertaining. If the Holder of a Bearer Security is unable to
produce any such unmatured coupon or coupons or matured coupon or coupons in
default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an amount equal
to the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if
there is furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to any Paying Agent any such missing coupon in
respect of which such a payment shall have been made such Holder shall be
entitled to receive from the Company the amount of such payment; provided,
however, that, except as otherwise provided in Section 10.2, interest
represented by coupons shall be payable only upon presentation and surrender
of those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and like tenor after the close of business at such office
or agency on (i) any Regular Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
in respect of the Registered Security issued in exchange for such Bearer
Security but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company or the
Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4, 9.6 or 11.7 not involving any transfer.
The Company shall not be required (1) 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
11.3 and ending at the close of business on (A) if Securities of the series
are issuable only as Registered Securities, the day of the mailing of the
relevant notice of redemption and (B) if Securities of the series are issuable
as Bearer Securities, the day of the first publication of the relevant notice
of redemption, except that if Securities of the series are also issuable as
Registered Securities and there is no publication, the mailing of relevant
notice of redemption, or (2) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part or (3) to
exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption.
Notwithstanding any other provision in this Indenture, no registered
Global Security may be transferred to, or registered or exchanged for
Securities registered in the name of, any Person other than the Depositary for
such registered Global Security or any nominee thereof, and no such transfer
may be registered, unless (1) such Depositary (A) notifies the Company that it
is unwilling or
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<PAGE>
unable to continue as Depositary for such registered Global Security or (B)
ceases to be a clearing agency registered under the Exchange Act, (2) the
Company executes and delivers to the Trustee a Company Order that such
registered Global Security shall be so transferable, registrable and
exchangeable, and such transfers shall be registrable, (3) there shall have
occurred and be continuing an Event of Default with respect to the Securities
evidenced by such registered Global Security or (4) there shall exist such
other circumstances, if any, as have been specified for this purpose as
contemplated by Section 3.1. Notwithstanding any other provision in this
Indenture, a registered Global Security to which the restriction set forth in
the preceding sentence shall have ceased to apply may be transferred only to,
and may be registered and exchanged for Registered Securities registered only
in the name or names of, such Person or Persons as the Depositary for such
registered Global Security shall have directed and no transfer thereof other
than such a transfer may be registered.
Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a registered Global Security to
which the restriction set forth in the first sentence of the preceding
paragraph shall apply, whether pursuant to this Section, Section 3.4, 3.6, 9.6
or 11.7 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a registered Global Security.
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, 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 with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon appertaining thereto and (ii) such security or indemnity as
may be required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that
such Security or coupon has been acquired by a bona fide purchaser, the
Company shall execute and the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security or in exchange for the security
to which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a new Security of the same series and
of like tenor and principal amount and bearing a number not contemporaneously
outstanding with coupons corresponding to the coupons, if any, appertaining to
such destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security 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; provided, however,
that the principal of and any premium and interest on Bearer Securities shall,
except as otherwise provided in Section 10.2, be payable only at an office or
agency located outside the United States.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient
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to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
of the destroyed, lost or stolen coupons 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 or coupons.
Section 3.7 Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 3.1 with
respect to any series of Securities, interest on any Registered Security which
is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Registered
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest. Interest on any Bearer
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment date shall be paid to the bearer of the applicable coupon
appertaining to such Bearer Security. Unless otherwise provided with respect
to the Securities of any series, payment of interest may be made at the option
of the Company (i) in the case of Registered Securities, by check mailed or
delivered to the address of any Person entitled thereto as such address shall
appear in the Security Register, or (ii) in the case of Bearer Securities,
except as otherwise provided in Section 10.2, upon presentation and surrender
of the appropriate coupon appertaining thereto at an office or agency of the
Company in a Place of Payment located outside the United States or by transfer
to an account maintained by the payee with a bank located outside the United
States.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (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 (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the close
of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Registered Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money 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
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provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date, therefor to be mailed, first-class
postage prepaid, to each Holder of Registered Securities of such series
at his address as it appears in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been
so mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (b).
(b) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, 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.
Subject to the provisions of Section 14.2, in the case of any
Registered Security which is converted after any Regular Record Date and on or
prior to the next succeeding Interest Payment Date, interest whose Stated
Maturity is on such Interest Payment Date shall be payable on such Interest
Payment Date notwithstanding such conversion, and such interest (whether or
not punctually paid or duly provided for) shall be paid to the Person in whose
name that Registered Security (or one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence in the case
of any Registered Security which is converted, interest whose Stated Maturity
is after the date of conversion of such Security shall not be payable.
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Section 3.8 Persons Deemed Owners.
---------------------
Prior to due presentment of a Registered Security for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of
receiving payment of principal of and any premium and (subject to Section 3.7)
any interest on such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 3.9 Cancellation.
------------
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or conversion 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 cancelled by it.
All Registered Securities and matured coupons so delivered shall be promptly
cancelled by the Trustee. All Bearer Securities and unmatured coupons so
delivered shall be held by the Trustee and, upon instruction by a Company
Order, shall be cancelled or held for reissuance. Bearer Securities and
unmatured coupons held for reissuance may be reissued only in replacement of
mutilated, lost, stolen or destroyed Bearer Securities of the same series and
like tenor or the related coupons pursuant to Section 3.6. All Bearer
Securities and unmatured coupons held by the Trustee pending such cancellation
of reissuance shall be deemed to be delivered to the Trustee for all purposes
of this Indenture and the Securities. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of
as directed by a Company Order.
In the case of any temporary global Bearer Security, which shall be
disposed of if the entire aggregate principal amount of the Securities
represented thereby has been exchanged, the certificate of disposition shall
state that all certificates required pursuant to Section 3.4 hereof,
substantially in the form of Exhibit B hereto, to be given by [Euroclear or
CEDEL S.A.], have been duly presented to the Trustee for such Securities by
[Euroclear or CEDEL S.A.] as the case may be. Permanent Global Securities shall
not be disposed of until exchanged in full for definitive Securities or until
payment thereon is made in full.
Section 3.10 Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE IV
Satisfaction and Discharge
Section 4.1 Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of conversion, registration of
transfer or exchange of Securities herein expressly provided for), and the
Trustee, at the expense
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of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(a) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than (i)
coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender is not
required or has been waived as provided in Section 3.5, (ii) Securities and
coupons which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 3.6, (iii) coupons appertaining to Bearer
Securities called for redemption and maturing after the relevant Redemption
Date, whose surrender has been waived as provided in Section 11.6, and (iv)
Securities and coupons 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 10.3 have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount sufficient to pay and discharge the entire indebtedness on
such Securities and coupons appertaining thereto, if any, not theretofore
delivered to the Trustee for cancellation, for principal and any premium and
interest to the date of such deposit (in the case of Securities and coupons
appertaining thereto, if any, which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Trustee to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (a) of
this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
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Section 4.2 Application of Trust Money.
--------------------------
Subject to provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in
trust and applied by it, in accordance with the provisions of the Securities,
the coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and
any premium and interest for whose payment such money has been deposited with
the Trustee. All moneys deposited with the Trustee pursuant to Section 4.1
(and held by it or any Paying Agent) for the payment of Securities and coupons
appertaining thereto, if any, subsequently converted shall be returned to the
Company upon Company Request.
ARTICLE V
Remedies
Section 5.1 Events of Default.
-----------------
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be occasioned by the provisions of Article
XV or be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment of any 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
(b) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(c) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(d) 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
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at least 10% 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
(e) the Company shall fail to pay any Indebtedness in excess of
[$20,000,000] owing by the Company, or any interest or premium thereon,
when due (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable
grace. period, if any, specified in the agreement or instrument relating to
such Indebtedness, or the Company shall fail to perform any term, covenant
or agreement on its part to be performed under any agreement or instrument
evidencing or securing or relating to any such Indebtedness, if the effect
of such failure in either case is that the maturity of such Indebtedness is
duly accelerated (for this purpose "Indebtedness" shall have the same
meaning as the term "Funded Debt" but the term Indebtedness shall apply
irrespective of the maturity of such indebtedness or obligation) (the
Trustee shall not be deemed to have knowledge of a default under this
subsection (e) unless it shall have actual knowledge thereof); provided,
--------
however, that, subject to the provisions of Sections 6.1 and 6.2, the
-------
Trustee shall not be deemed to have knowledge of such failure to pay unless
either (A) a Responsible Officer of the Trustee shall have actual knowledge
of such failure to pay 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 thereunder; or
(f) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(g) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of
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a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or state law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(h) any other Event of Default provided with respect to Securities of
that series.
Section 5.2 Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default 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.
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
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities and coupons
appertaining thereto, if any, of that series,
(B) the principal of (and premium, if any, on) any Securities
and coupons appertaining thereto, if any, of that series which have
become due
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otherwise than by such declaration of acceleration and any interest thereon
at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefor in
such Securities and coupons appertaining thereto, if any, 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
(b) all Events of Default with respect to Securities and coupons
appertaining thereto, if any, 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 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if
(a) default is made in the payment of any interest on any Security
and coupons appertaining thereto, if any, when such interest becomes due
and payable and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities and coupons, the whole amount then due and
payable on such Securities and coupons for principal and any premium and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and premium 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 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 and any
related coupons of such series by such
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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 5.4 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 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 6.7.
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; provided,
--------
however, that the Trustee may, on behalf of the Holders, vote for the election
- -------
of a trustee in bankruptcy or similar official and be a member of a creditor's
or other similar committee.
Section 5.5 Trustee May Enforce Claims Without Possession of Securities or
--------------------------------------------------------------
Coupons.
- --------
All rights of action and claims under this Indenture or the
Securities or coupons may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or coupons or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities or coupons in respect of which such judgment has been recovered.
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Section 5.6 Application of Money Collected.
------------------------------
Subject to Article XV, any money collected by the Trustee pursuant to
this Article shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money on account of
principal or any premium or interest, upon presentation of the Securities or
coupons and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 6.7; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities and
coupons in respect of which or for the benefit of which such money
has been collected, ratably,without preference or priority of any
kind, according to the amounts due and payable on such Securities
and coupons for principal and any premium and interest,
respectively.
Section 5.7 Limitation on Suits.
-------------------
No Holder of any Security of any series 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
(a) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(b) 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;
(c) 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;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(e) 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;
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it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.8 Unconditional Right of Holders to Receive Principal, Premium and
----------------------------------------------------------------
Interest and to Convert.
-----------------------
Notwithstanding any other provision in this Indenture, but subject
to Article XV, the Holder of any Security or coupon shall have the right,
which is absolute and unconditional, to receive payment of the principal of
and any premium and (subject to Section 3.7) interest on such Security or such
coupon on the respective Stated Maturities expressed in such Security or
coupon (or, in the case of redemption, on the Redemption Date) and to convert
such Security or coupon in accordance with Article XIV and to institute suit
for the enforcement of any such payment and right to convert, and such rights
shall not be impaired without the consent of such Holder.
Section 5.9 Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder 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 5.10 Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 3.6, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
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Section 5.11 Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any
Securities or coupons 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 5.12 Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
--------
(a) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 5.13 Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(a) in the payment of the principal of or any premium or interest on
any Security of such series, or
(b) in respect of a covenant or provision hereof which under Article
IX cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
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Section 5.14 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 nor
--------
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company or in any suit for the
enforcement of the right to convert any Security in accordance with Article XIV.
Section 5.15 Waiver of Usury, 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 usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
The Trustee
Section 6.1 Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, 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. 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.
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Section 6.2 Notice of Defaults.
------------------
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified in
- -------- -------
Section 5.1(d) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
Section 6.3 Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall 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;
(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;
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(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
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; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys 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.
Section 6.4 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.
Section 6.5 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 coupons and,
subject to Sections 6.8 and 6.13, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
Section 6.6 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.
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Section 6.7 Compensation and Reimbursement.
------------------------------
The Company agrees
(a) 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);
(b) except as otherwise expressly provided herein, to promptly
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
(c) 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.
Section 6.8 Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 6.9 Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be one or more Trustees hereunder with
respect to the Securities of each series, at least one of 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 and its Corporate
Trust Office in ______________________________. If such Person 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 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.
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Section 6.10 Resignation and Removal; Appointment of Successor.
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 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.
The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
If at any time:
(a) the Trustee shall fail to comply with Section 6.8 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
(b) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(c) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all securities, or (B) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
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
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Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any Series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, 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 6.11, 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.
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 10.6. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor.
--------------------------------------
In the case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
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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.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) and (b) of this Section, as the case may be.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
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Section 6.12 Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In 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.
Section 6.13 Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 6.14 Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer, partial conversion or partial
redemption thereof or pursuant to Section 3.6, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports
of condition at least
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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 to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The 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, subject to the
provisions of Section 6.7.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series, may have endorsed thereon, in
addition to the Trustee s certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
-------------------------------------------
As Trustee
By:
----------------------------------------
As Authenticating Agent
By:
----------------------------------------
Authorized Officer
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
Section 7.1 Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date, a list for each series of Securities, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Securities
of such series as of the Regular Record Date, as the case may be, 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;
excluding from any such list names and addresses received by the Trustee in its
- ---------
capacity as Security Registrar.
Section 7.2 Preservation of Information; Communications to Holders.
------------------------------------------------------
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 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar.
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The Trustee may destroy any list furnished to it as provided in Section 7.1 upon
receipt of a new list so furnished.
The rights of the 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.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
Section 7.3 Reports by Trustee.
------------------
The Trustee shall transmit to Holders of Registered Securities, as
the names and addresses of such Holders appear in the Security Register and to
such Holders of Securities as have, within the two years preceding such
transmissions, filed their names and addresses with the Trustee for that
purpose. such reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
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 7.4 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 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1 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
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Company shall not permit any Person to consolidate with or merge into the
Company or convey, transfer or lease its properties and assets substantially as
an entirety to the Company, unless:
(a) 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 or trust,
shall be organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and 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 and shall
have provided for conversion rights in accordance with Section 14.11;
(b) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or any
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing;
(c) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by this Indenture, the Company or
such successor Person, as the case may be, shall take such steps as shall
be necessary effectively to secure the Securities equally and ratably with
(or prior to) all indebtedness secured thereby; and
(d) 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.
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Section 8.2 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 8.1, 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 and coupons.
ARTICLE IX
Supplemental Indentures
Section 9.1 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:
(a) 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
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities and any coupons appertaining
thereto (and if such covenants are to be for the benefit of less than all
series of Securities and any coupons appertaining thereto, 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
(c) to add any additional Events of Default; or
(d) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or
any premium or interest on Bearer Securities, to permit Bearer Securities
to be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form
(e) 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,
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change or elimination (A) shall neither (i) apply to any Security and
coupons appertaining thereto, if any, of any series created prior to the
execution of such supplemental indenture and entitled to the benefit of
such provision nor (ii) modify the rights of the Holder of any such
Security and coupons appertaining thereto, if any, with respect to such
provision or (B) shall become effective only when there is no such
Security or coupons appertaining thereto, Outstanding; or
(f) to secure the Securities and coupons appertaining thereto, if
any, pursuant to the requirements of Article X or otherwise; or
(g) to establish the form or terms of Securities and coupons
appertaining thereto, if any, of any series as permitted by Sections 2.1
and 3.1; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 6.11; or
(i) to make provision with respect to the conversion rights of
Holders pursuant to the requirements of Article XV; or
(j) 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 (j) shall not adversely affect the interests of the Holders
of Securities and coupons appertaining thereto, if any, of any series in
any material respect.
Section 9.2 Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provision 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 and coupons appertaining thereto, if any, 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,
(a) change the Stated Maturity of the principal of, or any instalment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of
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interest thereon or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.2, or change any Place of Payment
where, or the coin or currency in which, any Security or any premium or
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
adversely affect the right to convert any Security as provided in Article
XIV, or modify the provisions of this Indenture with respect to the
subordination of the Securities in a manner adverse to the Holders, or
(b) 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
(c) modify any of the provisions of this Section, Section 5.13 or
Section 10.10, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this Clause shall not be deemed to require
-------- -------
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 10.10, or the
deletion of this proviso, in accordance with the requirements of Sections
6.11 and 9.1(h).
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 9.3 Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article (or the modifications thereby
of the trusts created by this
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Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.1) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 9.4 Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.5 Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 9.6 Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities and coupons appertaining
thereto, if any, of such series.
ARTICLE X
Covenants
Section 10.1 Payment of Principal, Premiums and Interest.
-------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 3.1 with respect to any series
of Securities, any interest due on and payable with respect to Bearer
Securities on or before Maturity shall be payable only upon presentation and
surrender of the several coupons for such interest installments, as are
evidenced thereby as they severally mature.
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Section 10.2 Maintenance of Office or Agency.
-------------------------------
If Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange, where securities may be surrendered
for conversion and where notices and demands to or upon the Company in respect
of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain (A) in The Borough of Manhattan, the City of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment, where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may
be surrendered for exchange for Registered Securities, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise), (B)
subject to any laws or regulations applicable thereto, in a Place of Payment
for that series which is located outside the United States, an office or
agency where Bearer Securities of that series and related coupons may be
presented and surrendered for payment; provided, however, that if the
Securities of that series are listed on the International Stock Exchange of
the United Kingdom and the Republic of Ireland Limited, the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and
such stock exchange shall so require, the Company will maintain a Paying Agent
for the Securities of that series in London, Luxembourg or any other required
city located outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange, and (C) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
located outside the United States an office or agency where any Registered
Securities of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange and where
notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may
be made or served at the Corporate Trust Office of the Trustee, except that
Bearer Securities of that series and the related coupons may be presented and
surrendered for payment at the office of any Paying Agent for such series
located outside the United States, and the Company hereby appoints the Trustee
as its agent to receive all such presentations, surrenders, notices and
demands.
No payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States, nor shall any payments be
made in respect of Bearer Securities or coupons appertaining thereto pursuant to
the presentation to the Company or its designated Paying Agents within the
United States; provided, however, that, if the Securities of a series are
denominated and payable in Dollars, payment of principal of and any premium and
interest on any Bearer Security shall be made at the office of the Company's
Paying Agent in The Borough of Manhattan, The City of New York, if (but only if)
payment in Dollars of the full amount of such principal, premium or interest, as
the case may be, at all offices or agencies outside the United States maintained
for the purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
-------- -------
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
Section 10.3 Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities and coupons appertaining thereto, if any,
it will, on or before each due date of the principal of or any premium or
interest on any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal and any premium and interest so becoming due until such sums shall
be paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and coupons appertaining thereto, if any, it will, prior
to each due date of the principal of or any premium or interest on any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
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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) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
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 or any
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium or interest has become due or 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
and coupons appertaining thereto, if any, 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 published in the English
language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 10.4 Statement by Officers as to Default.
-----------------------------------
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without
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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 10.5 Existence.
---------
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
-------- -------
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 10.6 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 and not disadvantageous in any material respect to
the Holders.
Section 10.7 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.
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Section 10.8 Restrictions on Secured Debt.
----------------------------
Subject to Section 3.1(n), the Company will not itself, and will not
permit any Restricted Subsidiary to, incur, issue, assume, or guarantee any
loans, whether or not evidenced by negotiable instruments or securities, or
any notes, bonds, debentures, coupons or other similar evidences of
indebtedness for moneys borrowed (loans and notes, bonds, debentures, coupons
or other similar evidences of indebtedness for money borrowed being hereafter
in this Section 10.8 called "Debt"), secured after the date hereof by pledge
of, or mortgage or lien on, any Principal Property of the Company or any
Restricted Subsidiary or any shares of Capital Stock of or Debt of any
Restricted Subsidiary (mortgages, pledges and liens being hereinafter in this
Section 10.8 called "Mortgage" or "Mortgages"), without effectively providing
that the Securities (together with, if the Company shall so determine, any
other Debt of the Company or such Restricted Subsidiary then existing or
thereafter created which is not subordinate to the Securities) 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, unless
after giving effect thereto, the aggregate amount of all such secured Debt
plus all Attributable Debt of the Company and its Restricted Subsidiaries with
respect to sale and leaseback transactions to which Section 10.9 is applicable
would not exceed 10% of Consolidated Net Tangible Assets; provided,
--------
however, that this Section 10.8 shall not apply to, and there shall be
- -------
excluded from secured Debt in any computation under this Section 10.8,
Debt secured by:
(a) Mortgages on property of, or on any shares of Capital Stock of or
Debt of, any corporation existing at the date hereof or at the time such
corporation becomes a Restricted Subsidiary;
(b) Mortgages in favor of the Company or any Restricted Subsidiary;
(c) Mortgages in favor of any governmental body to secure progress,
advance or other payments pursuant to any contract or provision of any
statute;
(d) Mortgages on property or assets, shares of Capital Stock or Debt
existing at the time of acquisition thereof (including acquisition through
merger or consolidation) or to secure the payment of all or any part of the
purchase price thereof or construction or development thereof or to secure
any Debt incurred prior to, at the time of, or within 180 days after the
later of the acquisition of such property or assets, shares of Capital
Stock or Debt or the completion of construction or development, for the
purpose of financing all or any part of the purchase price thereof or
construction or development thereof;
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(e) 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 or
construction or development of 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, includible (in whole or in
part) 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;
(f) Mortgages created in connection with a project financed with, and
created to secure, a Nonrecourse Obligation. For this purpose,
"Nonrecourse Obligation" shall mean indebtedness or lease payment
obligations substantially related to (i) the construction or acquisition of
assets not currently owned as of December 31, 1992 by the Company or any of
its Restricted Subsidiaries or (ii) the financing of a project involving
the development or expansion of properties of the Company or any of its
Restricted Subsidiaries, as to which the obligee with respect to such
indebtedness or obligation has no recourse to the general corporate funds
of the Company or any of its Restricted Subsidiaries or any assets of the
Company or any of its Restricted Subsidiaries other than (i) the assets
which were acquired with the proceeds of such transaction or the project
financed with the proceeds of such transaction or other assets comprising
part of the project of which such acquired assets are a part (and funds
generated by such assets or project) and (ii) the stock of any company or
the partnership interests in any partnership the only assets of which are
assets included within the immediately preceding Clause (i) except pursuant
to a covenant to pay to such obligee or to the obligor of such indebtedness
or obligation an amount equal to all or a portion of the amount of any
dividends received from such obligor within the previous 12 months; or
(g) Any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Mortgage referred
to in the foregoing Clauses (a) to (f), inclusive; provided, however, that
-------- -------
such extension, renewal or replacement Mortgage shall be limited to all or
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, however, that the sale or other transfer of the following
-------- -------
shall not be deemed to create secured Debt: (i) minerals in place for a period
of time until, or in an amount such that, the purchaser will realize therefrom a
specified amount of money (however determined) or a specified amount of such
minerals, or (ii) any other interest in property of the character commonly
referred to as a "production payment".
Section 10.9 Restriction on Sales and Leasebacks.
-----------------------------------
Subject to Section 3.1(n), the Company will not itself, and will not
permit any Restricted Subsidiary to, enter into any
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transaction after the date hereof 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 Restricted Subsidiary
of any Principal Property which has been or is to be sold or transferred by the
Company or such Restricted 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 secured Debt to which Section 10.8 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 10.8, Attributable Debt with respect to
any sale and leaseback transaction if:
(a) the lease in such sale and leaseback transaction is for a period,
including renewal rights, of not in excess of three years, or
(b) the Company or a Restricted Subsidiary, within 180 days after the
sale or transfer shall have been made by the Company or by a Restricted
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 of the Company) to (a) 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 Restricted Subsidiary; provided, however,
-------- -------
that the amount to be applied to the retirement of such Funded Debt of the
Company or a Restricted Subsidiary shall be reduced by (x) the principal
amount of any Securities (or other notes or debentures constituting such
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 Restricted Subsidiary
within 180 days after such sale; and provided, further, that,
-------- -------
notwithstanding the foregoing, no retirement referred to in this Clause (a)
may be effected by a payment at maturity or pursuant to any mandatory
sinking fund payment or any mandatory prepayment provision, or (b) the
purchase of other property which will constitute Principal Property having
a fair market value, in the opinion of the Board of Directors of the
Company, at least equal to the fair market value of the Principal Property
leased in such sale and leaseback transaction, or
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(c) such sale and leaseback transaction is entered into prior to, at
the time of, or within 180 days after the later of the acquisition of the
principal Property or the completion of construction thereon, or
(d) 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 acquisition or construction of
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, includible (in whole or in part) 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
(e) the lease payment obligation is created in connection with a
project financed with, and such obligation constitutes, a Nonrecourse
Obligation as defined in Section 10.8(f), or
(f) such sale and leaseback transaction is entered into between the
Company and a Restricted Subsidiary or between Restricted Subsidiaries.
Section 10.10 Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 10.6 to 10.9, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so 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 XI
Redemption of Securities
Section 11.1 Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with
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their terms and (except as otherwise specified as contemplated by Section 3.1
for Securities of any series) in accordance with this Article.
Section 11.2 Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by 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 11.3 Selection by Trustee of Securities to be Redeemed.
-------------------------------------------------
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, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If less than
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 and specified tenor not previously called for
redemption in accordance with the preceding sentence.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed (so
far as may be) to be the portion selected for redemption. Securities which have
been converted during a selection of Securities to be redeemed shall be treated
by the Trustee as Outstanding for the purpose of such selection.
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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 11.4 Notice of Redemption.
--------------------
Notice of redemption shall be given in the manner provided in
Section 1.6 mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Securities of any series 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,
(d) 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,
(e) in the case of any Securities that are convertible pursuant to
Article XIV, the conversion price or rate, the date on which the right to
convert the principal of the Securities to be redeemed will terminate and
the place or places where such Securities may be surrendered for
conversion,
(f) the place or places where such Securities, together in the case
of Bearer Securities with all coupons appertaining thereto, are to be
surrendered for payment of the Redemption Price,
(g) that the redemption is for a sinking fund, if such is the case,
(h) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons appertaining thereto maturing subsequent to
the date fixed for redemption or the amount of any such missing coupon or
coupons will be deducted from the Redemption Price, or security or
indemnity satisfactory to the Company, the Trustee and any Paying Agent
is furnished, and
(i) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject
to redemption on such Redemption Date pursuant to Section 3.5 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made.
A notice of redemption as contemplated by Section 1.6 need not identify
particular Registered Securities to be redeemed. Notice of redemption of
Securities to be redeemed at the election of,the Company shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company and shall be irrevocable.
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Section 11.5 Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date other than any Securities called for
redemption on that date which have been converted prior to the date of such
deposit.
If any Security called for redemption is converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held in
trust for the redemption of such Security shall (subject to any right of the
Holder of such Security or any Predecessor Security to receive interest as
provided in the last paragraph of Section 3.7) be paid to the Company upon
Company Request or, if then held by the Company, shall be discharged from such
trust.
Section 11.6 Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for
such interest appertaining to any Bearer Securities so to be redeemed, except
to the extent provided below, shall be redeemed. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
coupons appertaining thereto, if any, maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that, unless
--------
otherwise specified as contemplated by Section 3.1, installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable
to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.7 and, provided
--------
further, that all payments on Bearer Securities shall be made only in the
- -------
manner provided in Section 10.2 for payments on Bearer Securities.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons appertaining thereto maturing after the
Redemption Date, such Security may be paid after deducting from the Redemption
Price an amount equal to the face amount of all such missing coupons
appertaining thereto, or the surrender of such missing coupon or coupons
appertaining thereto may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by coupons appertaining
thereto shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 10.2) and, unless
otherwise specified as contemplated by Section 3.1, only upon presentation and
surrender of those coupons appertaining thereto.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 11.7 Securities Redeemed in Part.
---------------------------
Any Registered Security which is to be redeemed only in part shall
be surrendered at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or
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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 Registered Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
Section 11.8. Purchase of Securities.
----------------------
Unless otherwise specified as contemplated by Section 3.1, the Company
and any Affiliate of the Company may at any time purchase or otherwise acquire
Securities or coupons appertaining thereto in the open market or by private
agreement; provided that purchases or other acquisitions of Bearer Securities or
coupons appertaining thereto by the Company or any Affiliate of the Company may
be made only outside the United States, and payments therefor may be made only
upon surrender of such Bearer Securities or coupons appertaining thereto at a
location outside the United States and only in the manner provided for payments
on Bearer Securities in Section 10.2. Such acquisition shall not operate as or
be deemed for any purpose to be a redemption of the indebtedness represented by
such Securities or coupons appertaining thereto. Any Securities or coupons
appertaining thereto purchased or acquired by the Company may be delivered to
the Trustee and, upon such delivery, the indebtedness represented thereby shall
be deemed to be satisfied. Section 3.9 shall apply to all Securities and
coupons so delivered.
ARTICLE XII
Sinking Funds
Section 12.1 Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." 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 12.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the term of Securities
of such series.
Section 12.2 Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (2) may apply as a credit Securities of a series which have been
converted pursuant to Article XIV or which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities as provided for
by the terms of such series; provided that such Securities have not been
--------
previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
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Section 12.3 Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 12.2 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 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 11.3 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 11.4. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 11.6 and 11.7.
ARTICLE XIII
Defeasance and Covenant Defeasance
Section 13.1 Company's Option to Effect Defeasance or Covenant Defeasance.
------------------------------------------------------------
The Company may elect, at its option by Board Resolution at any time,
to have either Section 13.2 or Section 13.3 applied to the Outstanding
Securities of any series designated pursuant to Section 3.1 as being defeasible
pursuant to this Article 13 (hereinafter called a "Defeasible Series"), upon
compliance with the conditions set forth below in this Article 13; provided that
--------
Section 13.2 shall not apply to any series of Securities that is convertible
into Common Stock as provided in Article XIV or convertible into or exchangeable
for any other securities pursuant to Section 3.1(r).
Section 13.2 Defeasance and Discharge.
------------------------
Upon the Company's exercise of the option provided in Section 13.1 to
have this Section 13.2 applied to the Outstanding Securities of any Defeasible
Series and subject to the proviso to Section 13.1, the Company shall be deemed
to have been discharged from its obligations with respect to the Outstanding
Securities of such series as provided in this Section on and after the date
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the conditions set forth in Section 13.4 are satisfied (hereinafter called
"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 the Securities of such series and this Indenture insofar as
the Securities of such series are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), subject
to the following which shall survive until otherwise terminated or discharged
hereunder: (1) the right of Holders of Securities of such series to receive,
solely from the trust fund described in Section 13.4 and as more fully set forth
in such Section, payments in respect of the principal of and any premium and
interest on such Securities of such series when payments are due, (2) the
Company's obligations with respect to the Securities of such series under
Sections 3.4, 3.5, 3.6, 10.2 and 10.3, (3) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (4) this Article XIII. Subject to
compliance with this Article XIII, the Company may exercise its option provided
in Section 13.1 to have this Section 13.2 applied to the Outstanding Securities
of any Defeasible Series notwithstanding the prior exercise of its option
provided in Section 13.1 to have Section 13.3 applied to the Outstanding
Securities of such series.
Section 13.3 Covenant Defeasance.
-------------------
Upon the Company's exercise of the option provided in Section 13.1 to
have this Section 13.3 applied to the Outstanding Securities of any Defeasible
Series, (1) the Company shall be released from its obligations under Sections
10.5 through 10.9, inclusive, and Section 8.1, and (2) the occurrence of any
event specified in Sections 5.1(c), 5.1(d) (with respect to any of Sections 10.5
through 10.9, inclusive, and Section 8.1), 5.1(e) and 5.1(h) shall be deemed not
to be or result in an Event of Default, in each case with respect to the
Outstanding Securities of such series as provided in this Section on and after
the date the conditions set forth in Section 13.4 are satisfied (hereinafter
called "Covenant Defeasance"). For this purpose, such Covenant Defeasance means
that 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 specified Section (to
the extent so specified in the case of Section 5.1(d)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and the Securities of
such series shall be unaffected thereby.
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Section 13.4 Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of either Section
13.2 or Section 13.3 to the Outstanding Securities of any Defeasible Series:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 6.9 and agrees to comply with the
provisions of this Article XIII 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
Outstanding Securities of such series, (A) money in an amount, or (B) U.S.
Government Obligations that through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money in an
amount, or (C) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the principal of and any
premium and interest on the Securities of such series on the respective
Stated Maturities, in accordance with the terms of this Indenture and the
Securities of such series. As used herein, "U.S. Government Obligation"
means (x) any security that is (i) a direct obligation of the United States
of America for the payment of which full faith and credit of the United
States of America is pledged or (ii) an obligation of a Person controlled
or supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which, in
either case (i) or (ii), is not callable or redeemable at the option of the
issuer thereof, and (y) any depositary receipt issued by a bank (as defined
in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian
with respect to any U.S. Government Obligation specified in Clause (x) and
held by such custodian for the account of the holder of such depositary
receipt, or with respect to any specific payment of principal of or
interest on any such U.S. Government Obligation, provided that (except as
--------
required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depositary receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest evidenced by
such depositary receipt.
(b) In the case of an election under Section 13.2, the Company shall
have delivered to the Trustee an Opinion of
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Counsel stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date
first set forth hereinabove, there has been a change in the applicable
Federal income tax law, in either case (A) or (B) to the effect that, and
based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities of such series will not recognize gain or loss for
Federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to the Securities of such series and
will be subject to Federal income tax on the same amount, in the same
manner and at the same times as would be the case if such deposit,
Defeasance and discharge were not to occur.
(c) In the case of an election under Section 13.3, 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
gain or loss for Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to the Securities of such
series and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(d) The Company, shall have delivered to the Trustee an Officers'
Certificate to the effect that the Securities of such series, if then
listed on any securities exchange, will not be delisted as a result of such
deposit.
(e) No Event of Default or event that (after notice or lapse of time
or both) would become an Event of Default shall have occurred and be
continuing at the time of such deposit or, with regard to any Event of
Default or any such event specified in Sections 5.1(f) and (g), at any time
on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after
such 90th day).
(f) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning of
such Act).
(g) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(h) The Company, shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
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(i) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such
trust shall be qualified under such Act or exempt from regulation
thereunder.
Section 13.5 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 10.3, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section and Section 13.6, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 13.4 in respect of the
Securities of any Defeasible Series shall be held in trust and applied by the
Trustee, in accordance with the provisions of the Securities of such series and
this Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of Securities of such series, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 13.4 or the principal and interest received in
respect thereof other than any such tax, fee or other charge that by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article XIII 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 13.4 with respect to Securities of any Defeasible Series that, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Defeasance or Covenant Defeasance with respect to the
Securities of such series.
Section 13.6 Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article XIII with respect to the Securities of any series
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or
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otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Securities of such series shall be revived and reinstated
as though no deposit had occurred pursuant to this Article XIII with respect to
Securities of such series until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 13.5 with respect
to Securities of such series in accordance with this Article XIII; provided,
--------
however, that if the Company makes any payment of principal of or any premium or
- -------
interest on any Security of such series following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
Securities of such Series to receive such payment from the money so held in
trust.
ARTICLE XIV
Conversion of Securities
Section 14.1 Applicability; Conversion Privilege and Conversion Price.
--------------------------------------------------------
Securities of any series which are convertible into Common Stock of
the Company shall be convertible in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any series)
in accordance with this Article.
Subject to and upon compliance with the provisions of this Article, at
the option of the Holder thereof, any Security or any portion of the outstanding
principal amount thereof which is $1,000 or an integral multiple of $1,000 may
be converted at the principal amount thereof, or of such portion thereof, into
fully paid and nonassessable shares (calculated as to each conversion to the
nearest 1/100 of a share) of Common Stock of the Company at the conversion
price, determined as hereinafter provided, in effect at the time of conversion.
Such conversion right shall expire at the close of business on the date
specified for Securities of such series. In case a Security or portion thereof
is called for redemption at the election of the Company, such conversion right
in respect of the Security or portion so called shall expire at the close of
business on the 10th calendar day before the Redemption Date, unless the Company
defaults in making the payment due upon redemption.
The price at which shares of Common Stock shall be delivered upon
conversion (herein called the "conversion price") shall be the price specified
in relation to Securities of such series pursuant to Section 3.1. The
conversion price shall be adjusted in certain instances as provided in this
Article.
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Section 14.2 Exercise of Conversion Privilege.
--------------------------------
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security, duly endorsed or
assigned to the Company or in blank, at any office or agency of the Company
maintained for that purpose pursuant to Section 10.2, accompanied by written
notice to the Company (which shall be substantially in the form set forth in
Section 2.3) at such office or agency that the Holder elects to convert such
Security or, if less than the entire principal amount thereof is to be
converted, the portion thereof to be converted. Securities surrendered for
conversion during the period from the close of business on any Regular Record
Date next preceding any Interest Payment Date to the opening of business on such
Interest Payment Date shall (except in the case of Securities or portions
thereof which have been called for redemption on a Redemption Date within such
period) be accompanied by payment in New York Clearing House funds or other
funds acceptable to the Company of an amount equal to the interest payable on
such Interest Payment Date on the principal amount of Securities being
surrendered for conversion. Subject to the provisions of Section 3.7 relating
to the payment of Defaulted Interest by the Company, the interest payment with
respect to a Security called for redemption on a Redemption Date during the
period from the close of business on any Regular Record Date next preceding any
Interest Payment Date to the opening of business on such Interest Payment Date
shall be payable on such Interest Payment Date to the Holder of such Security at
the close of business on such Regular Record Date notwithstanding the conversion
of such Security after such Regular Record Date and prior to such Interest
Payment Date, and the Holder converting such Security need not include a payment
of such interest payment amount upon surrender of such Security for conversion.
Except as provided in the preceding sentence and subject to the final paragraph
of Section 3.7, no payment or adjustment shall be made upon any conversion on
account of any interest accrued on the Securities surrendered for conversion or
on account of any dividends on the Common Stock issued upon conversion.
Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for conversion
in accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the Company
shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share, as
provided in Section 15.3.
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In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of such Security.
Section 14.3 Fractions of Shares.
-------------------
No fractional shares of Common Stock shall be issued 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 which shall be issuable
upon conversion thereof shall be computed on the basis of the aggregate
principal amount of the Securities (or specified portions thereof) so
surrendered. Instead of any fractional share of Common Stock which would
otherwise be issuable upon conversion of any Security or Securities (or
specified portions thereof), the Company shall pay a cash adjustment in respect
of such fraction in an amount equal to the same fraction of the daily closing
price per share of Common Stock (consistent with Section 14.4(f) below) at the
close of business on the day of conversion.
Section 14.4 Adjustment of Conversion Price.
------------------------------
(a) In case the Company shall pay or make a dividend or other
distribution on any class of capital stock of the Company in Common Stock,
the conversion price in effect at the opening of business on the day
following the date fixed for determination of stockholders entitled to
receive such dividend or other distribution shall be reduced by multiplying
such conversion price by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding at the close of business on
the date fixed for such determination and the denominator shall be the sum
of such number of shares and the total number of shares constituting such
dividend or other distribution, such reduction to become effective
immediately after the opening of business on the day following the date
fixed for such determination. For the purposes of this paragraph (a), the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company will not pay any dividend or make any
distribution on shares of Common Stock held in the treasury of the Company.
(b) In case the Company shall issue rights or warrants to all holders
of its Common Stock entitling them to subscribe for or purchase shares of
Common Stock at a price per share less than the current market price per
share
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(determined as provided in paragraph (f) of this Section) of the Common
Stock on the date fixed for the determination of stockholders entitled to
receive such rights or warrants (other than pursuant to a dividend
reinvestment plan), the conversion price in effect at the opening of
business on the day following the date fixed for such determination shall
be reduced by multiplying such conversion price by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding at the
close of business on the date fixed for such determination plus the number
of shares of Common Stock which the aggregate of the offering price of the
total number of shares of Common Stock so offered for subscription or
purchase would purchase at such current market price and the denominator
shall be the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination plus the number of shares
of Common Stock so offered for subscription or purchase, such reduction to
become effective immediately after the opening of business on the day
following the date fixed for such determination. For the purposes of this
paragraph (b), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company but shall
include shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock. The Company will not issue any rights
or warrants in respect of shares of Common Stock held in the treasury of
the Company.
(c) In case outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the conversion price in
effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately reduced, and,
conversely, in case outstanding shares of Common Stock shall each be
combined into a smaller number of shares of Common Stock, the conversion
price in effect at the opening of business on the day following the day
upon which such combination becomes effective shall be proportionately
increased, such reduction or increase, as the case may be, to become
effective immediately after the opening of business on the day following
the day upon which such subdivision or combination becomes effective.
(d) In case the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock evidences of its indebtedness or assets
(including securities, but excluding any rights or warrants referred to in
paragraph (b) of this Section, any dividend or distribution paid in cash
out of the earned surplus of the Company and any dividend or distribution
referred to in paragraph (a) of this Section), 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 close
of business on the date fixed
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for the determination of stockholders entitled to receive such distribution
by a fraction of which the numerator shall be the current market price per
share (determined as provided in paragraph (6) of this Section) of the
Common Stock on the date fixed for such determination less the then fair
market value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution filed with the
Trustee) of the portion of the assets or evidences of indebtedness so
distributed applicable to one share of Common Stock and the denominator
shall all be such current market price per share of the Common Stock, such
adjustment to become effective immediately prior to the opening of business
on the day following the date fixed for the determination of stockholders
entitled to receive such distribution. If after the Distribution Date (the
"Distribution Date"), as defined in the Rights Agreement, dated as of
February 23, 1989, between the Company and The Chase Manhattan Bank, N.A.,
as in effect on the date hereof (the "Rights Agreement"), converting
Holders of the Securities are not entitled to receive the Rights, as
defined in the Rights Agreement, which would otherwise be attributable (but
for the date of conversion) to the shares of Common Stock received upon
such conversion, then adjustment of the conversion price shall be made
under the preceding sentence as if the Rights were then being distributed
to holders of the Company s Common Stock. If such an adjustment is made
and the Rights are later redeemed, invalidated or terminated, then a
corresponding reversing adjustment shall be made to the conversion price,
on an equitable basis, to take account of such event. However, it is
hereby agreed that the Company may elect to amend the provisions presently
applicable to the Rights so that each share of Common Stock issuable upon
conversion of the Securities, whether or not issued after the Distribution
Date for such Rights, will be accompanied by the Rights which would
otherwise be attributable (but for the date of conversion) to such shares
of Common Stock, in which event the preceding two sentences will not apply.
(e) The reclassification of Common Stock into securities other than
Common Stock (other than any reclassification upon a consolidation or
merger to which Section 14.11 applies) shall be deemed to involve (A) a
distribution of such securities other than Common Stock to all holders of
Common Stock (and the effective date of such reclassification shall be
deemed to be "the date fixed for the determination of stockholders entitled
to receive such distribution" and the "date fixed for such determination"
within the meaning of paragraph (d) of this Section), and (B) a subdivision
or combination, as the case may be, of the number of shares of Common Stock
outstanding immediately prior to such reclassification into the number of
shares of Common Stock outstanding immediately thereafter (and the
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effective date of such reclassification shall be deemed to be "the day upon
which such subdivision becomes effective" or "the day upon which such
combination becomes effective," as the case may be, such "the day upon
which such subdivision or combination becomes effective" within the meaning
of paragraph (c) of this Section).
(f) For the purpose of any computation under paragraphs (b) and (d)
of this Section, the current market price per share of Common Stock on any
day shall be deemed to be the average of the daily closing prices for the
five consecutive trading days (i.e., Business Days on which the Common
Stock is traded) selected by the Board of Directors commencing not more
than 20 trading days before, and ending not later than, the earlier of the
day in question and the day before the "ex" date with respect to the
issuance or distribution, requiring such computation. For this purpose,
the term "'ex' date," when used with respect to any issuance or
distribution, shall mean the first date on which the Common Stock trades
regular way on the applicable exchange or in the applicable market without
the right to receive such issuance or distribution. The closing price for
each day shall be the reported last sale price regular way or, in case no
such reported sale takes place on such day, the average of the reported
closing bid and asked prices regular way, in either case on the New York
Stock Exchange or, if the Common Stock is not listed or admitted to trading
on such Exchange, 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 National
Association of Securities Dealers Automated Quotations National Market
System or, if the Common Stock is not listed or admitted to trading on any
national securities exchange or quoted on such National Market System, the
average of the closing bid and asked prices in the over-the-counter market
as furnished by any New York Stock Exchange member firm selected from time
to time by the Board of Directors for that purpose.
(g) The Company may make such reductions in the conversion price, in
addition to those required by paragraphs (a), (b), (c) and (d) of this
Section, as it considers to be advisable in order to avoid or diminish any
income tax to any holders of shares of Common Stock resulting from any
dividend or distribution of stock or issuance of rights or warrants to
purchase or subscribe for stock or from any event treated as such for
income tax purposes or for any other reasons. The Company shall have the
power to resolve any ambiguity or correct any error in this paragraph (g)
and its actions in so doing shall be final and conclusive.
(h) No adjustment in the conversion price shall be required unless
such adjustment would require an increase or
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decrease of at least one percent in such conversion price; provided,
--------
however, that any adjustments which by reason of this paragraph (h) is not
-------
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Article shall be made
to the nearest cent or to the nearest 1/100 of a share, as the case may be.
Section 14.5 Notice of Adjustments of Conversion Price.
-----------------------------------------
Whenever the conversion price is adjusted as herein provided:
(a) the Company shall compute the adjusted conversion price in
accordance with Section 14.4 and shall prepare a certificate signed by the
Treasurer of the Company setting forth the adjusted conversion price and
showing in reasonable detail the facts upon which such adjustment is based,
and such certificate shall forthwith be filed at each office or agency
maintained for the purpose of conversion of Securities pursuant to Section
10.2; and
(b) a notice stating that the conversion price has been adjusted and
setting forth the adjusted conversion price shall forthwith be required,
and as soon as practicable after it is required, such notice shall be
mailed by the Company to all Holders at their last addresses as they shall
appear in the Security Register.
Section 14.6 Notice of Certain Corporate Action.
----------------------------------
In case:
(a) the Company shall declare a dividend (or any other distribution)
on its Common Stock payable otherwise than in cash out of its earned
surplus; or
(b) the Company shall authorize the granting to the holders of its
Common Stock of rights or warrants to subscribe for or purchase any shares
of capital stock of any class or of any other rights; or
(c) of any reclassification of the Common Stock of the Company (other
than a subdivision or combination of its outstanding shares of Common
Stock), or of any consolidation, merger or share exchange to which the
Company is a party and for which approval of any stockholders of the
Company is required, or of the sale or transfer of all or substantially all
of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company
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then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 10.2, and shall
cause to be mailed to all Holders at their last addresses as they shall appear
in the Security Register, at least 20 days (or 10 days in any case specified in
clause (a) or (b) above) prior to the applicable record or effective date
hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution, rights or warrants, or, if
a record is not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution, rights or warrants are to
be determined, or (y) the date on which such reclassification, consolidation,
merger, share exchange, sale, transfer, dissolution, liquidation or winding up
is expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale, transfer,
dissolution, liquidation or winding up. Neither the failure to give such notice
nor any defect therein shall affect the legality or validity of the proceedings
described in Clauses (a) through (d) of this Section 14.6. If at the time the
Trustee shall not be the conversion agent, a copy of such notice shall also
forthwith be filed by the Company with the Trustee.
Not less than seven days prior to the Distribution Date (as defined in
Section 14.4(d)), the Company shall cause to be filed at each office or agency
maintained for the purpose of conversion of Securities pursuant to Section 10.2,
and shall cause to be mailed to all Holders at their last addresses as they
shall appear in the Security Register, a notice stating the date on which the
Distribution Date is to occur, and briefly describing the import thereof.
Neither the failure to give such notice nor any defect therein shall affect the
legality or validity of the proceedings described in the Rights Agreement (as
defined in Section 14.4(d)). If at the time the Trustee shall not be the
conversion agent, a copy of such notice shall also forthwith be filed by the
Company with the Trustee.
Section 14.7 Company to Reserve Common Stock.
-------------------------------
The Company shall at all times reserve and keep available out of its
authorized but unissued Common Stock, for the purpose of effecting the
conversion of Securities, the full number of shares of Common Stock then
issuable upon the conversion of all Outstanding Securities.
Section 14.8 Taxes on Conversions.
--------------------
The Company will pay any and all taxes that may be payable in respect
of the issue or delivery of shares of Common
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Stock on conversion of Securities pursuant hereto. The Company shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of shares of Common Stock in a name
other than that of the Holder of the Security or Securities to be converted, and
no such issue or delivery shall be made unless and until the Person requesting
such issue has paid to the Company the amount of any such tax, or has
established to the satisfaction of the Company that such tax has been paid.
Section 14.9 Covenant as to Common Stock.
---------------------------
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be fully paid and
nonassessable and, except as provided in Section 15.8, the Company will pay all
taxes, liens and charges with respect to the issue thereof.
Section 14.10 Cancellation of Converted Securities.
------------------------------------
All Securities delivered for conversion shall be delivered to the
Trustee to be cancelled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 3.9.
Section 14.11 Provisions in Case of Consolidation, Merger or Sale of Assets.
-------------------------------------------------------------
In case of any consolidation of the Company with, or merger of the
Company into, any other Person, any merger of another Person into the Company
(other than a merger which does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock of the Company)
or any sale or transfer of all or substantially all of the assets of the
Company, the Person formed by such consolidation or resulting from such merger
or which acquires such assets, as the case may be, shall execute and deliver to
the Trustee a supplemental indenture providing that the Holder of each
convertible Security then outstanding shall have the right thereafter, during
the period such Security shall be convertible as specified in Section 14.1, to
convert such Security only into the kind and amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer by a
holder of the number of shares of Common Stock of the Company into which such
Security might have been converted immediately prior to such consolidation,
merger, sale or transfer, assuming such holder of Common Stock of the Company
failed to exercise his rights of election, if any, as to the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer (provided that if the kind or amount of securities, cash and
other property receivable
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upon such consolidation, merger, sale or transfer is not the same for each share
of Common Stock of the Company in respect of which such rights of election shall
not have been exercised ("non-electing share"), then for the purpose of this
Section the kind and amount of securities, cash and other property receivable
upon such consolidation, merger, sale or transfer by each non-electing share
shall be deemed to be the kind and amount so receivable per share by a plurality
of the non-electing shares). Such supplemental indenture shall provide for
adjustments which, for events subsequent to the effective date of such
supplemental indenture, shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Article. The above provisions of this
Section shall similarly apply to successive consolidations, mergers, sales or
transfers.
Section 14.12 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 fact exists which may require any adjustment of the conversion
price, 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 registration,
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 issued or 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 issue or
transfer or deliver any Common Stock or stock certificates or other securities
or property or to make any cash payment upon the surrender of any Security for
the purpose of conversion or to comply with any of the covenants of the Company
contained in this Article XIV.
ARTICLE XV
Subordination of Securities
Section 15.1 Securities Subordinate to Senior Indebtedness.
---------------------------------------------
The Company covenants and agrees, and each Holder of a Security or
coupon, by his acceptance thereof, likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article, the
indebtedness represented by the Securities and the payment of the principal of
(and premium, if any) and interest on each and all of the Securities and the
payment of any coupon are hereby expressly made subordinate and subject in
right of payment to the prior payment in full of all Senior Indebtedness.
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Section 15.2 Payment Over of Proceeds Upon Dissolution, Etc.
-----------------------------------------------
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of the Company, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the
benefit of creditors or any other marshalling of assets and liabilities of the
Company, then and in any such event the holders of Senior Indebtedness shall
be entitled to receive payment in full of all amounts due or to become due on
or in respect of all Senior Indebtedness, or provision shall be made for such
payment in money or money's worth, before the Holders of the Securities or
coupons appertaining thereto are entitled to receive any payment on account of
principal of (or premium, if any) or interest on the Securities or the payment
of the coupon amounts appertaining thereto, and to that end the holders of
Senior Indebtedness shall be entitled to receive, for application to the
payment thereof, any payment or distribution of any kind or character, whether
in cash, property or securities, which may be payable or deliverable in
respect of the Securities or coupons appertaining thereto in any such case,
proceeding, dissolution, liquidation or other winding up or event.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security or coupons appertaining
thereto shall have received any payment or distribution of assets of
the Company of any kind or character, whether in cash, property or securities,
before all Senior Indebtedness is paid in full or payment thereof provided
for, and if such fact shall, at or prior to the time of such payment or
distribution, have been made known to the Trustee or, as the case may be, such
Holder, then and in such event such payment or distribution shall be paid over
or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for application to the payment of all
Senior Indebtedness remaining unpaid, to the extent necessary to pay all
Senior Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment which are subordinated
in right of payment to all Senior Indebtedness which may at the time be
outstanding to substantially the same extent as, or to a greater extent than,
the Securities are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the conveyance
or transfer of its properties and assets substantially as an entirety to
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another Person upon the terms and conditions set forth in Article VIII shall not
be deemed a dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshalling of assets and liabilities of the Company
for the purposes of this Section if the Person formed by such consolidation or
into which the Company is merged or which acquires by conveyance or transfer
such properties and assets substantially as an entirety, as the case may be,
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions set forth in Article VIII.
Section 15.3 Prior Payment to Senior Indebtedness Upon Acceleration of
---------------------------------------------------------
Securities.
-------------------------
In the event that any Securities or any coupons appertaining thereto
are declared due and payable before their Stated Maturity, then and in such
event the holders of Senior Indebtedness outstanding at the time such
Securities or any coupons appertaining thereto so become due and payable shall
be entitled to receive payment in full of all amounts due or to become due on
or in respect of such Senior Indebtedness, or, provision shall be made for
such payment in money or money's worth, before the Holders of the Securities
or any coupons appertaining thereto are entitled to receive any payment by the
Company on account of the principal of (or premium, if any) or interest on the
Securities or on account of the purchase or other acquisition of Securities or
any coupons appertaining thereto; provided, however, that nothing in this
-------- -------
Section shall prevent the satisfaction of any sinking fund payment in
accordance with Article XII by delivering and crediting pursuant to Section
12.2 Securities or any coupons appertaining thereto which have been acquired
(upon redemption or otherwise) prior to such default or which have been
converted pursuant to Article XIV.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security or any coupons
appertaining thereto prohibited by the foregoing provisions of this Section,
and if such fact shall, at or prior to the time of such payment, have been
made known to the Trustee or, as the case may be, such Holder, then and in
such event such payment shall be paid over and delivered forthwith to the
Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 15.2 would be applicable.
Section 15.4 No Payment When Senior Indebtedness in Default.
----------------------------------------------
In the event and during the continuation of any default in the payment
of principal of (or premium, if any) or interest on any Senior Indebtedness
beyond any applicable grace period with respect thereto, or in the event that
any event of default with respect to any Senior Indebtedness shall have occurred
and be continuing and shall have resulted in such Senior Indebtedness becoming
or being declared due and payable prior to the date on which it would otherwise
have become due and payable, unless and
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until such event of default shall have been cured or waived or shall have ceased
to exist and such acceleration shall have been rescinded or annulled, or (b) in
the event any judicial proceeding shall be pending with respect to any such
default in payment or event of default, then no payment shall be made by the
Company on account of principal of (or premium, if any) or interest on the
Securities or on account of the purchase or other acquisition of Securities
and any coupons appertaining thereto; provided, however, that nothing in this
-------- -------
Section shall prevent the satisfaction of any sinking fund payment in
accordance with Article XII by delivering and crediting pursuant to Section
12.2 Securities and any coupons appertaining thereto which have been acquired
(upon redemption or otherwise) prior to such default or which have been
converted pursuant to Article XIV.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security and any coupons
appertaining thereto prohibited by the foregoing provisions of this Section,
and if such fact shall, at or prior to the time of such payment, have been
made known to the Trustee or, as the case may be, such Holder, then and in
such event such payment shall be paid over and delivered forthwith to the
Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 15.2 would be applicable.
Section 15.5 Payment Permitted If No Default.
-------------------------------
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent the Company, at any time except during the
pendency of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 15.2 or under the conditions
described in Section 15.3 or 15.4, from making payments at any time of principal
of (and premium, if any) or interest on the Securities.
Section 15.6 Subrogation to Rights of Holders of Senior Indebtedness.
-------------------------------------------------------
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Securities and any coupons appertaining thereto shall be subrogated
(equally and ratably with the holders of all indebtedness of the Company which
by its express terms is subordinated to indebtedness of the Company to
substantially the same extent as the Securities and any coupons appertaining
thereto are subordinated and is entitled to like rights of subrogation) to the
rights of the holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness until the principal of (and premium, if any) and interest on the
Securities shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of the
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Senior Indebtedness of any cash, property or securities to which the Holders
of the Securities and any coupons appertaining thereto or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior
Indebtedness by Holders of the Securities and any coupons appertaining thereto
or the Trustee, shall, as among the Company, its creditors other than holders
of Senior Indebtedness and the Holders of the Securities and any coupons
appertaining thereto, be deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness.
Section 15.7 Provisions Solely to Define Relative Rights.
-------------------------------------------
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities and
any coupons appertaining thereto on the one hand and the holders of Senior
Indebtedness on the other hand. Nothing contained in this Article or elsewhere
in this Indenture or in the Securities and any coupons appertaining thereto is
intended to or shall (a) impair, as among the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Securities and any
coupons appertaining thereto, the obligation of the Company, which is absolute
and unconditional (and which, subject to the rights under this Article of the
holders of Senior Indebtedness, is intended to rank equally with all other
general obligations of the Company), to pay to the Holders of the Securities
and any coupons appertaining thereto the principal of (and premium, if any)
and interest on the Securities and any coupons appertaining thereto as and
when the same shall become due and payable in accordance with their terms; or
(b) affect the relative rights against the Company of the Holders of the
Securities and any coupons appertaining thereto and creditors of the Company
other than the holders of Senior Indebtedness; or (c) prevent the Trustee or
the Holder of any Security and any coupons appertaining thereto from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of the
holders of Senior Indebtedness to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.
Section 15.8 Trustee to Effectuate Subordination.
-----------------------------------
Each holder of a Security and any coupons appertaining thereto by
his acceptance thereof authorizes and directs the Trustee on his behalf to
take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee his attorney-
in-fact for any and all such purposes.
Section 15.9 No Waiver of Subordination Provisions.
-------------------------------------
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
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non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities and any coupons appertaining thereto, without incurring
responsibility to the Holders of the Securities and any coupons appertaining
thereto and without impairing or releasing the subordination provided in this
Article or the obligations hereunder of the Holders of the Securities and any
coupons appertaining thereto to the holders of Senior Indebtedness, do any one
or more of the following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Indebtedness, or
otherwise amend or supplement in any manner Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any
rights against the Company and any other Person.
Section 15.10 Notice to Trustee.
-----------------
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities and any coupons appertaining
thereto. Notwithstanding the provisions of this Article or any other provision
of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the Trustee in respect of the Securities and any coupons appertaining thereto,
unless and until the Trustee shall have received written notice thereof from
the Company or a holder of Senior Indebtedness or from any trustee therefor;
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of Section 6.1, shall be entitled in all respects to assume
that no such facts exist; provided, however, that if the Trustee shall not
-------- -------
have received the notice provided for in this Section at least three Business
Days prior to the date upon which by the terms hereof any money may become
payable for any purpose (including, without limitation, the payment of the
principal of (and premium, if any) or interest on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to
the purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within three Business Days
prior to such date.
Subject to the provisions of Section 6.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior
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Indebtedness (or a trustee therefor) to establish that such notice has been
given by a holder of Senior Indebtedness (or a trustee therefor). In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article, the Trustee
may request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under
this Article, and if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
Section 15.11 Reliance on Judicial Order or Certificate of Liquidating Agent.
--------------------------------------------------------------
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 6.1, and
the Holders of the Securities and any coupons appertaining thereto shall be
entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other
Person making such payment or distribution, delivered to the Trustee or to the
Holders of Securities and any coupons appertaining thereto, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this
Article.
Section 15.12 Trustee Not Fiduciary for Holders of Senior Indebtedness.
--------------------------------------------------------
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders of Securities
and any coupons appertaining thereto or to the Company or to any other Person
cash, property or securities to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article or otherwise.
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Section 15.13 Rights of Trustee as Holder of Senior Indebtedness; Preservation
----------------------------------------------------------------
of Trustee's Rights.
-------------------
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.7.
Section 15.14 Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
--------
however, that Section 15.13 shall not apply to the Company or any Affiliate of
- -------
the Company if it or such Affiliate acts as Paying Agent.
Section 15.15 Certain Conversions Deemed Payment.
----------------------------------
For the purposes of this Article only, (a) the issuance and delivery
of junior securities upon conversion of Securities in accordance with Article
XIV shall not be deemed to constitute a payment or distribution on account of
the principal of or premium or interest on Securities and any coupons
appertaining thereto or on account of the purchase or other acquisition of
Securities and any coupons appertaining thereto, and (b) the payment,
issuance or delivery of cash, property or securities (other than junior
securities) upon conversion of a Security shall be deemed to constitute
payment on account of the principal of such Security. For the purposes of this
Section, the term "junior securities" means (A) shares of any stock of any
class of the Company and (B) securities of the Company which are subordinated
in right of payment to all Senior Indebtedness which may be outstanding at the
time of issuance or delivery of such securities to substantially the same
extent as, or to a greater extent than, the Securities are so subordinated as
provided in this Article. Nothing contained in this Article or elsewhere in
this Indenture or in the Securities is intended to or shall impair, as among
the Company, its creditors other than holders of Senior Indebtedness and the
Holders of the Securities, the right, which is absolute and unconditional, of
the Holder of any Security to convert such Security in accordance with Article
XIV.
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Section 15.16 Trust Moneys Not Subordinated.
-----------------------------
Notwithstanding anything contained herein to the contrary, payments
from moneys or the proceeds of U.S. Government Obligations held in trust under
Article XIII by the Trustee for the payment of principal of, premium, if any,
and interest on the Securities from the date of deposit (if made in compliance
with this Indenture) shall not be subordinated to the prior payment of any
Senior Indebtedness or subject to the restraints set forth in this Article,
and none of the Holders of Securities or any coupons appertaining thereto
shall be obligated to pay over any such amount to the Company or any holder of
Senior Indebtedness of the Company or any other creditor of the Company.
----------------------------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
CYPRUS AMAX MINERALS COMPANY
Attest:
By
- ----------------------------- -------------------------------
Attest: ---------------------------------
By
- ----------------------------- -------------------------------
-95-
<PAGE>
STATE OF COLORADO )
) ss.
COUNTY OF ARAPAHOE )
On the _____ day of _______________, 19___, before me personally came
____________________, to be known, who, being by me duly sworn, did depose and
say that he is _______________ of Cyprus Amax Minerals Company, 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.
Witness my hand and official seal.
My commission expires:
-------------------------------
-------------------------------
Notary Public
STATE OF COLORADO )
) ss.
COUNTY OF ARAPAHOE )
On the _____ day of _______________, 19___, before me personally came
____________________, to be known, who, being by me duly sworn, did depose and
say that he is _______________ of ______________________________, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
Witness my hand and official seal.
My commission expires:
-------------------------------
-------------------------------
Notary Public
-96-
<PAGE>
EXHIBIT A
FORM OF CERTIFICATE TO BE
GIVEN BY OWNER OF SECURITY OR BENEFICIAL OWNER OF
INTEREST IN A GLOBAL SECURITY
CYPRUS AMAX MINERALS COMPANY
TITLE OF SECURITIES
(THE "SECURITIES")
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities that are held by the undersigned or held
by you for the account of the undersigned (i) are owned by person(s) that are
not citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United States
persons"), (ii) are owned by United States person(s) that (A) are foreign
branches of United States financial institutions (as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing for
their own account or for resale, or (B) acquired Securities through foreign
branches of United States financial institutions and who hold the Securities
through such United States financial institutions on the date hereof (and in
either case (A) or (B), each such United States financial institution hereby
certifies, on its own behalf or through its agent, that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) are owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)) and in addition if the owner of the Securities is a United
States or foreign financial institution described in clause (iii) above (whether
or not also described in clause (i) or (ii)) this is to further certify that
such financial institution has not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify that, except as set forth below, (i) in the
case of debt securities, the Securities are beneficially owned by (a) non-U.S.
person(s) or (b) U.S. person(s) who purchased the Securities in transactions
which did not require registration under the Act; or (ii) in the case of equity
securities, the Securities are owned by (x) non-U.S. person(s) (and such
person(s) are not acquiring the Securities for the account or benefit of U.S.
person(s)) or (y) U.S. person(s) who purchased the Securities in a transaction
which did not require registration under the Act. If this certification is
being delivered in connection with the exercise of warrants pursuant to Section
230.902(m) of Regulation S under the Act, then this is further
A-1
<PAGE>
to certify that, except as set forth below, the Securities are being exercised
by and on behalf of non-U.S. person(s). As used in this paragraph the term
"U.S. person" has the meaning given to it by Regulation S under the Act.
As used herein, "United States" means the United States of America
(including the States and District of Columbia); and its "possessions" including
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the Securities
held by you for our account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
This certification excepts and does not relate to
$_____________________ of such interest in the above Securities in respect of
which we are not able to certify and as to which we understand exchange and
delivery of definitive Securities (or, if relevant, exercise of any rights or
collection of any interest) cannot be made until we do so certify.
We understand that this certification is required in Connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
*Dated: ____________________________, ________
NAME OF PERSON MAKING CERTIFICATION
By: __________________________________________
As, or as Agent for, the beneficial
owner(s) of the Securities to which
this Certificate relates
By: __________________________________________
As, or as Agent for, the financial
institution (if any) through which
a United States Person acquired the
Securities to which this Certificate
relates
- ---------------------------
*To be dated no earlier that the Certification Date.
A-2
<PAGE>
EXHIBIT B
FORM OF CERTIFICATION TO BE GIVEN
BY [EUROCLEAR OR CEDEL S.A.]
CYPRUS AMAX MINERALS COMPANY
TITLE OF SECURITIES
(THE "SECURITIES")
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture, dated as of
___________________________________, between Cyprus Amax Minerals Company and
The Bank of New York, as of the date hereof, { } principal amount
of the above captioned Securities (i) is owned by persons that are not citizens
or residents of the United States, domestic partnerships, domestic corporations
or any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States persons"), (ii) is
owned by United States persons that (A) are foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section 1.165-
12(c)(1)(v)) ("financial institutions") purchasing for their own account or for
resale, or (B) acquired Securities through foreign branches of United States
financial institutions and who hold the Securities through such United States
financial institutions on the date hereof (and in either case (A) or (B), each
such United States financial institution has certified, on its own behalf or
through its agent, that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) is owned by United States or foreign
financial institutions for purposes of resale during the restricted period (as
defined in U.S. Treasury Regulations section 1.163-5(c)(2)(i)(D)(7)), and to the
further effect that the United States or foreign financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify with respect to principal amount of
Securities set forth above that, except as set forth below, we have received in
writing, by tested telex or by electronic transmission, from our Member
Organizations entitled to a portion of such principal amount, certifications
with respect to such portion, substantially to the effect set forth in the
Indenture.
B-1
<PAGE>
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any interest)
any portion of the temporary Global Security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organizations to the effect that the statements made by such
Member Organizations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification or a
copy hereof to any interest party in such proceedings.
Dated: ______________________________, _______
(dated the Exchange Date or the Interest Payment Date)
_______________________________________
as operator of the Euroclear System
or
[CEDEL S.A.]
By: ___________________________________
B-2
<PAGE>
EXHIBIT 12
CYPRUS AMAX MINERALS COMPANY
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED
STOCK DIVIDEND REQUIREMENTS
(in thousands)
<TABLE>
<CAPTION>
Three months Year ended December 31,
ended March 31, ------------------------------------------------------
1994 1993 1992 1991 1990 1989
--------------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Income (Loss) before Discontinued
Operations and Cumulative Effect
of Accounting Changes 18,611 100,169 (245,972) 42,744 111,031 234,828
Income Tax Provision (Benefit) 5,215 30,739 (82,742) 10,868 13,445 92,413
--------------- ---------- ---------- ---------- ---------- ----------
23,826 130,908 (328,714) 53,612 124,476 327,241
Fixed Charges
Interest 26,532 41,610 19,774 22,412 19,710 12,454
Interest Portion of Rental
Expense 4,602 12,569 11,628 10,368 8,155 7,683
--------------- ---------- ---------- ---------- ---------- ----------
Total Fixed Charges 31,134 54,179 31,402 32,780 27,865 20,137
Preferred Stock Dividend
Requirements 5,975 3,020 14,779 18,494 16,530 20,548
--------------- ---------- ---------- ---------- ---------- ----------
Combined Fixed Charges and
Preferred Stock Dividend
Requirements 37,109 57,199 46,181 51,274 44,395 40,685
=============== ========== ========== ========== ========== ==========
Earning (Loss) Before Income Taxes
and Fixed Charges 53,893 177,525 (300,396) 80,983 152,341 347,378
=============== ========== ========== ========== ========== ==========
Ratio of Earnings to Fixed Charges 1.7 3.3 (1) 2.5 5.5 17.3
=============== ========== ========== ========== ========== ==========
Ratio of Earnings to Combined
Fixed Charges and Preferred
Stock Dividend Requirements 1.5 3.1 (2) 1.6 3.4 8.5
=============== ========== ========== ========== ========== ==========
</TABLE>
(1) Earnings for the year ended December 31, 1992, were inadequate to cover
fixed charges by $331,798,000.
(2) Earnings for the year ended December 31, 1992, were inadequate to cover
combined fixed charges and preferred stock dividend requirements by
$346,577,000.
<PAGE>
EXHIBIT 15
June 7, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Dear Sirs:
We are aware that Cyprus Amax Minerals Company has incorporated by reference
our reports dated November 4, 1993 and May 13, 1994 (issued pursuant to the
provisions of Statement on Auditing Standards No.71) in the Prospectus
constituting part of its Registration Statement on Form S-3 to be filed on or
about June 7, 1994. We are also aware of our responsibilities under the
Securities Act of 1933.
Yours very truly,
/s/ Price Waterhouse
PRICE WATERHOUSE
<PAGE>
EXHIBIT 23.1
CONSENT OF PRICE WATERHOUSE
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated March 1, 1994, which appears on page 38 of the 1993 Annual Report of
Cyprus Amax Minerals Company, which is incorporated by reference in Cyprus
Amax Minerals Company's Annual Report on Form 10-K for the year ended
December 31, 1993. We also consent to the incorporation by reference of our
report on the Financial Statement Schedules, which appears on page 29 of such
Annual Report on Form 10-K. We also consent to the reference to us under the
heading "Experts" in such Prospectus.
/s/ Price Waterhouse
PRICE WATERHOUSE
Denver, Colorado
June 7, 1994
<PAGE>
[LETTERHEAD OF COOPERS & LYBRAND APPEARS HERE]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement on
Form S-3 of Cyprus Amax Minerals Company and Cyprus Amax Finance Corp. (the
"Registration Statement") (File No. 33- ) of our reports dated July 1,
1993, on our audits of the combined financial statements and financial
statement schedules of Amax Business to be Merged as of December 31, 1992 and
1991, and for each year in the three-year period ended December 31, 1992,
which reports are included in the Joint Proxy Statements-Prospectus, dated
September 24, 1993, of Cyprus Minerals Company and AMAX Inc. on Form 8-K, dated
September 24, 1993 which are located on pages F-1 to F-39 and are incorporated
herein by reference. Our report on the audits of the combined financial
statements includes explanatory paragraphs describing the purpose of
presenting the Amax Business to be Merged combined financial statements and
the changes in method of accounting for income taxes and post-retirement
benefits other than pensions. We also consent to reference to our firm under
the caption "Experts" in the Registration Statement (File No. 33- ).
/s/ Cooper & Lybrand
COOPER & LYBRAND
New York, New York
June 7, 1994
