<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 12, 1994
REGISTRATION NO. 33-54097
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
AMENDMENT NO. 1
TO
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--
CYPRUS AMAX FINANCE CORPORATION-- 36-2684040
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, L.L.C.
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]
----------------
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.
- --------------------------------------------------------------------------------
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<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
Cover Page of Prospectus.................. Forepart of Registration
Statement; Outside Front Cover
Page
2. Inside Front and Outside Back Cover Pages
of Prospectus.............................. Inside Front and Outside Back
Cover Pages
3. Summary Information, Risk Factors and Ratio
of Earnings to
Fixed Charges............................. The Company; Ratio of Earnings
to Fixed Charges and Preferred
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
Reference.................................. Incorporation of Certain
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 JULY 12, 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........................................ 31 7/8 25 3/4 .20
Third quarter (through July 8)........................ 31 1/8 29
</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 as a 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 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.
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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.
29
<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, L.L.C., 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
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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............................................ 19
Description of Depositary Shares.......................................... 23
Description of Common Stock............................................... 26
Description of Warrants................................................... 28
Plan of Distribution...................................................... 29
Validity of Securities.................................................... 31
Experts................................................................... 31
</TABLE>
----------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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, L.L.C.*
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, L.L.C.--see Exhibit 5.1*
24.1 Powers of Attorney (included in signature pages)+
</TABLE>
- --------
+ Previously filed with the Company's and Finance's Registration Statement on
Form S-3 filed with the Commission on June 10, 1994.
* Filed herewith.
II-1
<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 TWELFTH DAY OF JULY, 1994.
CYPRUS AMAX MINERALS COMPANY
By: /s/ Francis J. Kane
----------------------------------
FRANCIS J. KANE
VICE PRESIDENT AND TREASURER
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.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ Milton H. Ward* Co-Chairman, July 12, 1994
- ------------------------------------- President, and
MILTON H. WARD Chief Executive
Officer
/s/ Allen Born* Co-Chairman July 12, 1994
- -------------------------------------
ALLEN BORN
/s/ Gerald J. Malys* Senior Vice July 12, 1994
- ------------------------------------- President and Chief
GERALD J. MALYS Financial Officer
(Principal
Financial Officer)
/s/ John Taraba* Vice President and July 12, 1994
- ------------------------------------- Controller
JOHN TARABA (Principal
Accounting Officer)
/s/ Linda G. Alvarado Director July 12, 1994
- -------------------------------------
LINDA G. ALVARADO
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ George S. Ansell* Director July 12, 1994
- -------------------------------------
GEORGE S. ANSELL
/s/ William C. Bousquette* Director July 12, 1994
- -------------------------------------
WILLIAM C. BOUSQUETTE
/s/ Thomas V. Falkie* Director July 12, 1994
- -------------------------------------
THOMAS V. FALKIE
/s/ Ann Maynard Gray* Director July 12, 1994
- -------------------------------------
ANN MAYNARD GRAY
/s/ James C. Huntington, Jr.* Director July 12, 1994
- -------------------------------------
JAMES C. HUNTINGTON, JR.
/s/ Michael A. Morphy* Director July 12, 1994
- -------------------------------------
MICHAEL A. MORPHY
Director
- -------------------------------------
ROCKWELL A. SCHNABEL
/s/ Theodore M. Solso* Director July 12, 1994
- -------------------------------------
THEODORE M. SOLSO
/s/ John Hoyt Stookey* Director July 12, 1994
- -------------------------------------
JOHN HOYT STOOKEY
/s/ James A. Todd, Jr.* Director July 12, 1994
- -------------------------------------
JAMES A. TODD, JR.
/s/ Billie B. Turner* Director July 12, 1994
- -------------------------------------
BILLIE B. TURNER
*By: Kathleen J. Gormley
- -------------------------------------
ATTORNEY-IN-FACT
</TABLE>
II-3
<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 TWELFTH DAY OF JULY, 1994.
CYPRUS AMAX FINANCE CORPORATION
By /s/ Francis J. Kane
-----------------------------------
FRANCIS J. KANE
VICE PRESIDENT AND TREASURER
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.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ Milton H. Ward* Chairman, President, July 12, 1994
- ------------------------------------- and Chief Executive
MILTON H. WARD Officer
/s/ Gerald J. Malys* Director, Senior July 12, 1994
- ------------------------------------- Vice President and
GERALD J. MALYS Chief Financial
Officer (Principal
Financial Officer)
/s/ Philip C. Wolf* Director July 12, 1994
- -------------------------------------
PHILIP C. WOLF
/s/ John Taraba* Vice President and July 12, 1994
- ------------------------------------- Controller
JOHN TARABA (Principal
Accounting Officer)
By: Kathleen J. Gormley
-----------------------------
ATTORNEY-IN-FACT
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
------- ----------- ------
<C> <S> <C>
4.3 Form of Indenture for Senior Subordinated Debt Securities
4.4 Form of Senior Subordinated Debt Security (included in
Exhibit 4.3)
4.7 Form of Indenture for Guaranteed Debt Securities
4.8 Form of Senior Debt Security (included in Exhibit 4.7)
5.1 Opinion of Davis, Graham & Stubbs, L.L.C.
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, L.L.C. (included in
Exhibit 5.1)
</TABLE>
<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 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.
-4-
<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.
-6-
<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
-11-
<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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<PAGE>
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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<PAGE>
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
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<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.
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<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"
-28-
<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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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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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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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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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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(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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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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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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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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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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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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<PAGE>
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, 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
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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.
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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
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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.
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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.
------------------------------
-79-
<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 FINANCE CORPORATION
Issuer
AND
CYPRUS AMAX MINERALS COMPANY
Guarantor
TO
----------------------------------------
Trustee
----------
INDENTURE
Dated as of ___________, 1994
----------
Guaranteed Securities
- ------------------------------------------------------------------------------
<PAGE>
Cyprus Amax Finance Corporation
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................................................................... 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.................... 12
Section 1.4 Acts of Holders; Record Dates............................. 13
Section 1.5 Notices, Etc., to Trustee, Company and
Guarantor................................................. 16
Section 1.6 Notice to Holders; Waiver................................. 16
Section 1.7 Conflict with Trust Indenture Act......................... 17
Section 1.8 Effect of Headings and Table of Contents.................. 18
Section 1.9 Successors and Assigns.................................... 18
Section 1.10 Separability Clause....................................... 18
Section 1.11 Benefits of Indenture..................................... 18
Section 1.12 Governing Law............................................. 18
Section 1.13 Legal Holidays............................................ 18
ARTICLE II Security Forms................................................ 19
Section 2.1 Forms Generally........................................... 19
Section 2.2 Form of Face of Registered Security....................... 20
Section 2.3 Form of Reverse of Registered Security.................... 22
Section 2.4 Form of Legend for Global Securities...................... 32
Section 2.5 Form of Trustee's Certificate of
Authentication............................................ 32
ARTICLE III The Securities................................................ 32
Section 3.1 Amount Unlimited; Issuable in Series...................... 32
Section 3.2 Denominations............................................. 35
Section 3.3 Execution, Authentication, Delivery and
Dating.................................................... 36
Section 3.4 Temporary Securities...................................... 38
Section 3.5 Registration, Registration of Transfer
and Exchange.............................................. 41
Section 3.6 Mutilated, Destroyed, Lost and Stolen
Securities................................................ 44
Section 3.7 Payment of Interest; Interest Rights
Preserved................................................. 45
Section 3.8 Persons Deemed Owners..................................... 47
Section 3.9 Cancellation.............................................. 47
</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>
Section 3.10 Computation of Interest................................... 48
ARTICLE IV Satisfaction and Discharge.................................... 48
Section 4.2 Application of Trust Money................................ 50
ARTICLE V Remedies...................................................... 50
Section 5.1 Events of Default......................................... 50
Section 5.2 Acceleration of Maturity; Rescission and
Annulment................................................. 52
Section 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee.................................... 53
Section 5.4 Trustee May File Proofs of Claim.......................... 54
Section 5.5 Trustee May Enforce Claims Without
Possession of Securities or Coupons....................... 54
Section 5.6 Application of Money Collected............................ 55
Section 5.7 Limitation on Suits....................................... 55
Section 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest and to
Convert................................................... 56
Section 5.9 Restoration of Rights and Remedies........................ 56
Section 5.10 Rights and Remedies Cumulative............................ 56
Section 5.11 Delay or Omission Not Waiver.............................. 57
Section 5.12 Control by Holders........................................ 57
Section 5.13 Waiver of Past Defaults................................... 57
Section 5.14 Undertaking for Costs..................................... 58
Section 5.15 Waiver of Usury, Stay or Extension Laws................... 58
ARTICLE VI The Trustee................................................... 58
Section 6.1 Certain Duties and Responsibilities....................... 58
Section 6.2 Notice of Defaults........................................ 59
Section 6.3 Certain Rights of Trustee................................. 59
Section 6.4 Not Responsible for Recitals or Issuance
of Securities............................................. 60
Section 6.5 May Hold Securities....................................... 60
Section 6.6 Money Held in Trust....................................... 61
Section 6.7 Compensation and Reimbursement............................ 61
Section 6.8 Disqualification; Conflicting Interests................... 61
Section 6.9 Corporate Trustee Required; Eligibility................... 61
Section 6.10 Resignation and Removal; Appointment of
Successor................................................. 62
Section 6.11 Acceptance of Appointment by Successor.................... 64
Section 6.12 Merger, Conversion, Consolidation or
Succession to Business.................................... 65
Section 6.13 Preferential Collection of Claims Against
Company................................................... 65
Section 6.14 Appointment of Authenticating Agent....................... 65
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE VII Holders' Lists and Reports by Trustee and
Company....................................................... 67
Section 7.1 Company to Furnish Trustee Names and
Addresses of Holders...................................... 67
Section 7.2 Preservation of Information;
Communications to Holders................................. 68
Section 7.3 Reports by Trustee........................................ 68
Section 7.4 Reports by Company........................................ 68
ARTICLE VIII Consolidation, Merger, Conveyance, Transfer or
Lease......................................................... 69
Section 8.1 Company and Guarantor May Consolidate,
Etc., Only on Certain Terms............................... 69
Section 8.2 Successor Substituted..................................... 70
ARTICLE IX Supplemental Indentures....................................... 70
Section 9.1 Supplemental Indentures Without Consent
of Holders................................................ 70
Section 9.2 Supplemental Indentures with Consent of
Holders................................................... 72
Section 9.3 Execution of Supplemental Indentures...................... 73
Section 9.4 Effect of Supplemental Indentures......................... 73
Section 9.5 Conformity with Trust Indenture Act....................... 74
Section 9.6 Reference in Securities to Supplemental
Indentures................................................ 74
ARTICLE X Covenants..................................................... 74
Section 10.1 Payment of Principal, Premiums and
Interest.................................................. 74
Section 10.2 Maintenance of Office or Agency........................... 74
Section 10.3 Money for Securities Payments to Be Held
in Trust.................................................. 77
Section 10.4 Statement by Officers as to Default....................... 77
Section 10.5 Existence................................................. 78
Section 10.6 Maintenance of Properties................................. 78
Section 10.7 Payment of Taxes and Other Claims......................... 78
Section 10.8 Restrictions on Secured Debt.............................. 79
Section 10.9 Restriction on Sales and Leasebacks....................... 81
Section 10.10 Waiver of Certain Covenants............................... 83
ARTICLE XI Redemption of Securities...................................... 83
Section 11.1 Applicability of Article.................................. 83
Section 11.2 Election to Redeem; Notice to Trustee..................... 83
Section 11.3 Selection by Trustee of Securities to be
Redeemed.................................................. 83
Section 11.4 Notice of Redemption...................................... 84
Section 11.5 Deposit of Redemption Price............................... 85
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
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----
<S> <C>
Section 11.6 Securities Payable on Redemption Date..................... 86
Section 11.7 Securities Redeemed in Part............................... 87
Section 11.8 Purchase of Securities.................................... 87
ARTICLE XII Sinking Funds................................................. 88
Section 12.1 Applicability of Article.................................. 88
Section 12.2 Satisfaction of Sinking Fund Payments
with Securities........................................... 88
Section 12.3 Redemption of Securities for Sinking
Fund...................................................... 88
ARTICLE XIII Defeasance and Covenant Defeasance............................ 89
Section 13.1 Company's and the Guarantor's Option to
Effect Defeasance or Covenant Defeasance.................. 89
Section 13.2 Defeasance and Discharge.................................. 89
Section 13.3 Covenant Defeasance....................................... 90
Section 13.4 Conditions to Defeasance or Covenant
Defeasance................................................ 90
Section 13.5 Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions.................................. 93
Section 13.6 Reinstatement............................................. 93
ARTICLE XIV Exchange of Securities........................................ 94
Section 14.1 Applicability; Exchange Privilege and
Exchange Price............................................ 94
Section 14.2 Exercise of Exchange Privilege............................ 94
Section 14.3 Fractions of Shares....................................... 96
Section 14.4 Adjustment of Exchange Price.............................. 96
Section 14.5 Notice of Adjustments of Exchange Price................... 100
Section 14.6 Notice of Certain Corporate Action........................ 100
Section 14.7 Guarantor to Reserve Common Stock......................... 101
Section 14.8 Taxes on Exchanges........................................ 101
Section 14.9 Covenant as to Common Stock............................... 102
Section 14.10 Cancellation of Exchanged Securities...................... 102
Section 14.11 Provisions in Case of Consolidation,
Merger or Sale of.Assets.................................. 102
Section 14.12 Responsibility of Trustee................................. 103
ARTICLE XV Subordination of Securities................................... 103
Section 15.1 Securities Subordinate to Senior
Indebtedness.............................................. 103
Section 15.2 Payment Over of Proceeds Upon
Dissolution, Etc.......................................... 104
Section 15.3 Prior Payment to Senior Indebtedness Upon
Acceleration of Securities................................ 105
Section 15.4 No Payment When Senior Indebtedness in
Default................................................... 106
</TABLE>
-iv-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 15.5 Payment Permitted If No Default........................... 107
Section 15.6 Subrogation to Rights of Holders of
Senior Indebtedness....................................... 107
Section 15.7 Provisions Solely to Define Relative
Rights.................................................... 108
Section 15.8 Trustee to Effectuate Subordination....................... 108
Section 15.9 No Waiver of Subordination Provisions..................... 108
Section 15.10 Notice to Trustee......................................... 109
Section 15.11 Reliance on Judicial Order or Certificate
of Liquidating Agent...................................... 110
Section 15.12 Trustee Not Fiduciary for Holders of
Senior Indebtedness....................................... 110
Section 15.13 Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's
Rights.................................................... 111
Section 15.14 Article Applicable to Paying Agents....................... 111
Section 15.15 Certain Exchanges Deemed Payment.......................... 111
Section 15.16 Trust Moneys Not Subordinated............................. 112
ARTICLE XVI Subordination of Securities................................... 112
Section 16.1 Guarantee................................................. 112
Section 16.2 Execution and Delivery of Guarantees...................... 114
EXHIBIT A.................................................................. A-1
EXHIBIT B.................................................................. B-1
</TABLE>
-v-
<PAGE>
INDENTURE, dated as of _____________, 1994, between Cyprus Amax
Finance Corporation, a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company") and Cyprus Amax Minerals
Company, a corporation duly organized and existing under the laws of the State
of Delaware (herein called the "Guarantor"), each 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
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.
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for the guarantee by it of the Securities as provided for
herein.
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 and the Guarantor, 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:
<PAGE>
(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 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
-2-
<PAGE>
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 the Guarantor or any duly authorized committee of those boards.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or the Guarantor to have been
duly adopted by such person's 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
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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 Guarantor 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
Guarantor and which is not subject to redemption by the Guarantor. 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 Guarantor 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 Guarantor and which are not subject to
redemption by the Guarantor; 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.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its 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 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 or the Guarantor and their respective
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.
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<PAGE>
"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.
"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.
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<PAGE>
"Guarantee" means any Guarantee of the Guarantor endorsed on a
Security authenticated and delivered pursuant to this Indenture and shall
include the Guarantee set forth in Article 16.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this Instrument until a successor Person shall become such pursuant
to the applicable provisions of this Indenture, and thereafter "Guarantor" shall
mean such successor Person.
"Guarantor Request" or "Guarantor Order" means a written request or
order signed in the name of the Guarantor by any one of its Co-Chairmen of the
Board, its Chief Executive Officer, its President, any Vice President, and by
any one of its Chief Financial Officer, its Treasurer, its Secretary or any
Assistant Secretary, and delivered to the Trustee.
"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, when used with reference to the Company
or the Guarantor, a certificate signed by the
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<PAGE>
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 or
the Guarantor, 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 or the Guarantor.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company or the Guarantor, 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 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 or the
Guarantor;
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
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<PAGE>
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, the Guarantor or any other obligor upon the
Securities or any Affiliate of the Company, the Guarantor 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, the Guarantor or any other obligor upon the Securities or
any Affiliate of the Company, the Guarantor 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 the Guarantor or any Restricted Subsidiary
of the Company or the Guarantor which is located within the present 50 States of
the
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<PAGE>
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 or the Guarantor is not of
material importance to the total business conducted by the Company or the
Guarantor 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 or the Guarantor
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 or the
Guarantor (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.
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<PAGE>
"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.
[If applicable, insert -- "Senior Indebtedness" means, when used with
---------------------
respect to the Company or the Guarantor and unless otherwise defined in the
applicable indenture supplement, the principal of (and premium, if any) and
interest on (a) all indebtedness of the Company or the Guarantor (including
indebtedness of others guaranteed by the Company or the Guarantor) 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 or the
Guarantor 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.]
[If applicable, insert -- "Senior Subordinated Indebtedness" means,
---------------------
when used with respect to the Company or the Guarantor, the Securities, in the
case of the Company, and the Guarantees, in the case of the Guarantor, and any
other indebtedness, guarantee or obligation of the Company or the Guarantor, as
the case may be, that specifically provides that such indebtedness, guarantee or
obligation is to rank pari passu with other Senior Subordinated Indebtedness of
---- -----
the Company or the Guarantor, as the case may be, and is not subordinated by its
terms to any indebtedness, guarantee or obligation of the Company or the
Guarantor, as the case may be, which is not Senior Indebtedness.
[If applicable, insert -- "Subordinated Indebtedness" means, when used
---------------------
with respect to the Company or the Guarantor, the Securities, in the case of the
Company, and the Guarantees, in the case of the Guarantor, and any other
indebtedness, guarantee or obligation of the Company or the Guarantor, as the
case may be, that specifically provides that such indebtedness, guarantee or
obligation is to rank pari passu with other Subordinated Indebtedness of the
---- -----
Company or the Guarantor, as the case may be, and is not subordinated by its
terms to any indebtedness, guarantee or obligation of the Company or the
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<PAGE>
Guarantor, as the case may be, which is not Senior Indebtedness or Subordinated
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 the
Guarantor or by one or more other Subsidiaries, or by the Company or the
Guarantor 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, the Guarantor
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 or the Guarantor to the
Trustee to take any action under any provision of this Indenture, the Company or
the Guarantor shall furnish to the Trustee such certificates and opinions as may
be required
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<PAGE>
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 the Guarantor, 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 or the
Guarantor 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 the
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<PAGE>
Guarantor or any subsidiary of the Company or the Guarantor stating that the
information with respect to such factual matters is in the possession of the
Company or the Guarantor or any subsidiary of the Company or the Guarantor,
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 or the
Guarantor. 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, the Company and the Guarantor, 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,
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<PAGE>
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, the Company
and the Guarantor 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, the Company or the
Guarantor in reliance thereon, whether or not notation of such action is made
upon such Security.
The Company and the Guarantor 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 and the Guarantor may, at their 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 and the Guarantor
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,
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<PAGE>
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 and the
Guarantor 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 and the Guarantor 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 and the Guarantor, (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 and the Guarantor, 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, the Guarantor 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, the Guarantor 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
-15-
<PAGE>
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, the Company and the Guarantor 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, Company and Guarantor.
------------------------------------------------
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, by the Company or by the Guarantor
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 or the Guarantor 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 or the Guarantor 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 or the Guarantor.
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
-16-
<PAGE>
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
-17-
<PAGE>
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 [if applicable, insert -- and
---------------------
Senior Subordinated Indebtedness] of the Company or the Guarantor] 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 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
-18-
<PAGE>
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
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 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.
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.
-19-
<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 FINANCE CORPORATION
________________________________________
No. _________ $____________
Cyprus Amax Finance Corporation, 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
-20-
<PAGE>
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].
This Security is unconditionally guaranteed, on a [senior] [senior
subordinated] [subordinated] basis, by Cyprus Amax Minerals Company (the
"Guarantor") as set forth in Article 16 of the Indenture and the Guarantee
endorsed hereon.
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 FINANCE CORPORATION
By_______________________________
Attest:
____________________________
-21-
<PAGE>
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"), among the Company, the Guarantor 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 Guarantor, 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 exchange
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
exchange to the nearest 1/100 of a share) of Common Stock of the Guarantor at an
exchange price per share of Common Stock equal to $_____ per each share of
Common Stock (or at the current adjusted exchange price if an adjustment has
been made as provided in the Indenture) by surrender of this Security, duly
endorsed or assigned to the Guarantor or in blank, to the Guarantor at its
office or agency in _______________, accompanied by written notice to the
Guarantor that the Holder hereof elects to exchange this Security, or if less
than the entire principal amount hereof is to be exchanged, the portion hereof
to be exchanged, 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 exchanged 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 exchanged. 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
-22-
<PAGE>
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 exchange for interest accrued hereon or for dividends on the
Common Stock issued on exchange. No fractions of shares or scrip representing
fractions of shares will be issued on exchange, but instead of any fractional
interest the Guarantor shall pay a cash adjustment as provided in the Indenture.
The exchange 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 Guarantor is a party or the transfer of substantially all
of the assets of the Guarantor, the Indenture shall be amended, without the
consent of any Holders of Securities, so that this Security, if then
outstanding, will be exchangeable thereafter, during the period this Security
shall be exchangeable 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 exchanged 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>
-23-
<PAGE>
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,
<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
-24-
<PAGE>
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 [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.]
[If Senior Indebtedness, insert -- The indebtedness evidenced by this
------------------------------
Security has been designated as Senior Indebtedness, and, to the extent provided
in the Indenture, is pari passu with all other Senior Indebtedness.]
---- -----
[If Senior Subordinated Indebtedness, insert -- 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 as his attorney-in-fact for any and all such purposes.]
[If Subordinated Indebtedness, insert -- 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.]
-25-
<PAGE>
[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 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 of the Guarantor and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company, the
Guarantor 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 or the Guarantor 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
-26-
<PAGE>
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.
[If the Security and the Guarantee are issued on a senior subordinated
---------------------------------------------------------------------
or subordinated basis, insert -- 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 obligations of the Company and the Guarantor, 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 exchange this Security as provided in the
Indenture.
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.
-27-
<PAGE>
Prior to due presentment of this Security for registration of
transfer, the Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor 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 Guarantor, 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 EXCHANGE NOTICE]
To: CYPRUS AMAX MINERALS COMPANY
The undersigned owner of this Security hereby irrevocably exercises
the option to exchange 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 exchange, together with any check in payment for fractional
shares and any Securities, representing any unexchanged 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.
-28-
<PAGE>
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]
______________________________]
[FORM OF GUARANTEE]
[SENIOR SUBORDINATED][SUBORDINATED] GUARANTEE
For value received, CYPRUS AMAX MINERALS COMPANY, a company
incorporated under the laws of the state of Delaware (including any successor
under the Indenture referred to in the Security upon which this Guarantee is
endorsed, the "Guarantor"), hereby fully, unconditionally and irrevocably
guarantees [if senior subordinated indebtedness, insert -- on a senior
-------------------------------------------
subordinated basis][if subordinated indebtedness, insert -- on a subordinated
------------------------------------
basis] to the Holder of the Security upon which this Guarantee is endorsed, and
to the Trustee on behalf of each such Holder, the performance of all obligations
of the Company under the Indenture and the Securities. In case of the failure
of the Company or any successor thereto punctually to pay any amounts due, the
Guarantor hereby agrees to cause any such payment to be
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<PAGE>
made punctually when and as the same shall become due and payable, as if such
payment were being made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional and absolute, irrespective of the invalidity, irregularity or
unenforceability of such Security or the Indenture, the absence of any action to
enforce the same, the granting of any waiver or consent by the Trustee or the
Holder of any such Security with respect to any provisions thereof, the recovery
of any judgment against the Company or any action to enforce the same, or any
other circumstances which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and covenants
that this Guarantee will not be discharged except by complete performance of the
obligations contained in such Security and in this Guarantee.
If the Trustee or the Holder of such Security is required by any court
or otherwise to return to the Company or the Guarantor, or any custodian,
receiver, liquidator, trustee, sequestrator or other similar official acting in
relation to the Company or the Guarantor, any amount paid to the Trustee or such
Holder in respect of such Security, this Guarantee to the extent of such amount
so returned, shall be reinstated in full force and effect. The Guarantor
further agrees, to the fullest extent that it may lawfully do so, that, as
between the Guarantor, on the one hand, and the Holder of such Security and the
Trustee, on the other hand, the maturity of the obligations guaranteed hereby
may be accelerated as provided in Article 5 of the Indenture for the purposes of
this Guarantee, notwithstanding any stay, injunction or other prohibition extant
under any applicable bankruptcy law preventing such acceleration in respect of
the obligations guaranteed hereby.
The Guarantor hereby irrevocably waives any claim or other rights
which it may now or hereafter acquire against the Company that arises from the
existence, payment, performance or enforcement of the Guarantor's obligations
under this Guarantee, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, any right to
participate in any claim or remedy of the Holder of such Security and the
Trustee on behalf of such Holder against the Company or any collateral which
such Holder or the Trustee on behalf of such Holder hereafter acquires, whether
or not such claim, remedy or right arises in equity, or under contract, statute
or common law, including, without limitation, the right to take or receive from
the Company, directly or indirectly, in cash or other property or by set-off or
in any other manner, payment or security on account of such claim or other
rights. If any amount shall be paid to the Guarantor in violation of the
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<PAGE>
preceding sentence at any time prior to the payment in full of all obligations
and all other amounts payable under this Guarantee, such amount shall be deemed
to have been paid to the Guarantor for the benefit of, and held in trust for the
benefit of, the Holder of such Security and the Trustee on behalf of such
Holder, and shall forthwith be paid to the Trustee for the benefit of such
Holder to be credited and applied upon such guaranteed obligations,whether
matured or unmatured, in accordance with the terms of the Indenture.
[If senior subordinated indebtedness, insert --Indebtedness evidenced
-------------------------------------------
by this Guarantee is, to the extent and in the manner provided in the Indenture,
(i) subordinated in right of payment to the prior payment in full of all
principal of, and premium (if any) and interest on, all existing and future
Senior Indebtedness of the Guarantor, as defined in the Indenture, and (ii) pari
----
passu with all other Senior Subordinated Indebtedness of the Guarantor, as
- -----
defined in the Indenture, and this Guarantee is endorsed hereon subject to such
provisions, and each Holder of this Security, by accepting the same, agrees to
and shall be bound by such provisions, and authorizes the Trustee on his behalf
to take such actions as may be necessary or appropriate to effect the
subordination as provided in the Indenture and appoint the Trustee his attorney-
in-fact for such purpose.]
[If subordinated indebtedness, insert -- Indebtedness evidenced by
------------------------------------
this Guarantee is, to the extent and in the manner 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 Subordinated
---- -----
Indebtedness, and this Security is used 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.]
All capitalized terms used without definition in this Guarantee shall
have the respective meanings assigned thereto in the Indenture.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Security upon which this Guarantee is
endorsed shall have been executed by the Trustee under the Indenture by the
manual signature of one of its authorized officers.
CYPRUS AMAX MINERALS COMPANY
ATTEST:
- ------------------------------- ---------------------------------
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<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 Board Resolutions of the Company and the Guarantor
and, subject to Section 3.3, set forth, or determined in the manner provided, in
an Officers' Certificate of the Company or the Guarantor, or established in one
or more indentures supplemental hereto, prior to the issuance of Securities of
any series,
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<PAGE>
(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 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
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<PAGE>
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;
(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
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<PAGE>
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 exchangeable 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 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
Resolutions of the Company and the Guarantor 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 Board Resolutions of the Company and the Guarantor, 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.
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<PAGE>
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.
The Guarantees shall be executed on behalf of the Guarantor by either
of its Co-Chairmen of the Board, its President, one of its Vice Presidents or
its Treasurer, 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 Guarantees may be manual or facsimile.
Securities and Guarantees and coupons appertaining thereto bearing the
manual or facsimile signatures of individuals who were at any time the proper
officers of the Company or the Guarantor shall bind the Company and the
Guarantor, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any Series, executed by
the Company, with the Guarantees of the Guarantor endorsed thereon, together
with any coupons appertaining thereto, 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
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<PAGE>
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 Resolutions of the Company and the Guarantor 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 Resolutions of the Company and the Guarantor as permitted
by Section 3.1, that such terms have been established in conformity with
the provisions of this Indenture;
(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; and
(d) that the Guarantees endorsed on such Securities, when the
Securities have been 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 Guarantor 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 principals and to such
other matters as counsel may specify.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of
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<PAGE>
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 Guarantee 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 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 and the Guarantor may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities, each having endorsed therein a
temporary Guarantee executed by the Guarantor, 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.
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<PAGE>
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.
Temporary Guarantees shall be substantially of the tenor of the definitive
Guarantees in lieu of which they are issued with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Guarantees may determine, as evidenced by their execution of such Guarantees.
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, each having endorsed therein
definitive Guarantees, 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 and the Guarantor 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 with the Guarantees endorsed therein. On or after the Exchange
Date such temporary global Bearer Security shall be surrendered by the Common
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<PAGE>
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
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<PAGE>
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.
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 and the Guarantor 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 and the Guarantor 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.
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<PAGE>
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
and the Guarantor 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 and the Guarantor,
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
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the Company, the Guarantor 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, (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 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
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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 and the Guarantor
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, the Guarantor or the Trustee that
such Security or coupon has been acquired by a bona fide purchaser, the Company
and the Guarantor 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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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
and the Guarantor, 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,
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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 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
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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.
Section 3.8 Persons Deemed Owners.
---------------------
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor 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 Guarantor, 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 or 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 and the Guarantor may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
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and delivered hereunder which the Company or the Guarantor 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 or Guarantor 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 of the Company or the Guarantor, 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
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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 or the Guarantor, 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 or the Guarantor has paid or caused to be paid all
other sums payable hereunder by the Company or the Guarantor; and
(c) the Company or the Guarantor, as the case may be, 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 or coupons appertaining thereto
subsequently exchanged shall be returned to the Guarantor upon Guarantor Request
[if applicable, insert -- and shall not be subject to the claims of the holders
---------------------
of Senior Indebtedness].
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 and the Guarantor 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
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has been given, by registered or certified mail, to the Company and the
Guarantor by the Trustee or to the Company, the Guarantor and the Trustee
by the Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(e) the Company or the Guarantor shall fail to pay any Indebtedness
in excess of [$20,000,000] owing by the Company or the Guarantor, 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 or
the Guarantor 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 or the Guarantor, 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 or the Guarantor in an
involuntary case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a decree
or order adjudging the Company or the Guarantor a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or the Guarantor
under any applicable Federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or the Guarantor or of any substantial part of
their respective property, or ordering the winding up or liquidation of
their 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
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(g) the commencement by the Company or the Guarantor 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
either of them to the entry of a decree or order for relief in respect of
the Company or the Guarantor 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
the Guarantor or of any substantial part of its property, or the making by
it of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Company or the Guarantor 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 the Guarantor (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, the
Guarantor and the Trustee, may rescind and annul such declaration and its
consequences if
(a) the Company or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay
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(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 or 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 and the Guarantor covenant 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 or the Guarantor 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
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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 the
Guarantor (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
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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.
------------------------------
[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;
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(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 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 exchange such Security or
coupon in accordance with Article XIV and to institute suit for the enforcement
of any such payment and right to exchange, 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
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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.
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
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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 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 exchange any Security in accordance with Article
XIV.
Section 5.15 Waiver of Usury, Stay or Extension Laws.
---------------------------------------
The Company and the Guarantor each 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
and the Guarantor each (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
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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 or the Guarantor
mentioned herein shall be sufficiently evidenced by a Company Request or
Company Order in the case of a request or direction of the Company, or a
Guarantor Request or a Guaranty Order, in the case of a request or
direction of the Guarantor, 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
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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 or the Guarantor, 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, the Guarantor or the Trustee, 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
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with the Company and the Guarantor 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 and the Guarantor.
Section 6.7 Compensation and Reimbursement.
------------------------------
The Company and the Guarantor agree
(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
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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 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.
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 and the
Guarantor. 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 and the Guarantor.
If at any time:
(a) the Trustee shall fail to comply with Section 6.8 after written
request therefor by the Company, the Guarantor 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
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<PAGE>
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, with the consent
of the Guarantor, 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, the Guarantor 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.
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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, the Guarantor 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.
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
Guarantor, 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, the Guarantor 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
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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 and the
Guarantor 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.
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 the Guarantor 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 the Guarantor 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
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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 the Guarantor 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 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 and the Guarantor. 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 and the
Guarantor. 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 the Guarantor 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
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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:
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
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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 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, with the Company and with the
Guarantor. The Company will notify the Trustee when any Securities are listed
on any stock exchange.
Section 7.4 Reports by Company.
------------------
The Company and the Guarantor shall file with the Trustee and the
Commission, and transmit to Holders, such
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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 and Guarantor May Consolidate, Etc., Only on Certain
------------------------------------------------------------
Terms.
-----
Neither the Company nor the Guarantor shall 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 neither the Company nor the
Guarantor shall permit any Person (other than a wholly-owned subsidiary of the
Company or the Guarantor) to consolidate with or merge into the Company or the
Guarantor or convey, transfer or lease its properties and assets substantially
as an entirety to the Company or the Guarantor, unless:
(a) in case the Company or the Guarantor 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 or the Guarantor is merged or
the Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company or the Guarantor 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 or the Guarantor 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, the Guarantor
or any Subsidiary of either of them as a result of such transaction as
having been incurred by the Company, the Guarantor or such Subsidiary at
the time of such transaction, no Event of
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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,
the Guarantor 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 or the Guarantor 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 or the Guarantor with, or merger
of the Company or the Guarantor into, any other Person or any conveyance,
transfer or lease of the properties and assets of the Company or the Guarantor
substantially as an entirety in accordance with Section 8.1, the successor
Person formed by such consolidation or into which the Company or the Guarantor
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 or the Guarantor under this Indenture with the same effect as if such
successor Person had been named as the Company or the Guarantor 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 Guarantees 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, the Guarantor, 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
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hereto, in form satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company or
the Guarantor and the assumption by any such successor of the covenants of
the Company or the Guarantor herein and in the Securities; or
(b) to add to the covenants of the Company or the Guarantor 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 the
Guarantor; 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; or
(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
(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
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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 XIV; 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 of any series or any related coupons 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, the Guarantor, 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 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
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(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 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
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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 and
the Guarantor shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee, the Guarantor and the Company, to any
such supplemental indenture may be prepared and executed by the Company and the
Guarantor 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, 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 and the Guarantor will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series may be
presented
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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 or the
Guarantor 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 and the Guarantor 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 or the Guarantor 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
and the Guarantor 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 or
the Guarantor in respect of the Securities of that series and this Indenture may
be served. The Company and the Guarantor 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 or the Guarantor 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 and the Guarantor hereby
appoint 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
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or the Guarantor 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 the
Guarantor 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 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 or the Guarantor in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company or the Guarantor 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 or the Guarantor of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company and the Guarantor 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 or the Guarantor 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.
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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 the Guarantor 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 or the Guarantor 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, the Guarantor 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, the Guarantor 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 or the Guarantor, 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 or the Guarantor on Company Request or
Guarantor Request, or (if then held by the Company or the Guarantor) 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 and the Guarantor 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 or the Guarantor 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 or the Guarantor.
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Section 10.4 Statement by Officers as to Default.
-----------------------------------
The Company and the Guarantor will deliver to the Trustee, within 120
days after the end of each fiscal year, of the Company and the Guarantor ending
after the date hereof, an Officers' Certificate, stating whether or not to the
best knowledge of the signers thereof the Company or the Guarantor 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 or the Guarantor 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 and the Guarantor 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 of each of the Company and the Guarantor
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of each of the Company and the Guarantor and that the
loss thereof is not disadvantageous in any material respect to the Holders.
Section 10.6 Maintenance of Properties.
-------------------------
The Company and the Guarantor 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 and the Guarantor 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 or the Guarantor from discontinuing the operation or maintenance of any
of such properties if such discontinuance is, in the judgment of the Company or
the Guarantor, 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 and the Guarantor 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, the
Guarantor or any
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Subsidiary or upon the income, profits, or property of the Company, the
Guarantor 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, the Guarantor or any Subsidiary; provided, however, that neither the
-------- -------
Company nor the Guarantor shall 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), neither the Company nor the Guarantor will
itself, nor will either of them 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, the Guarantor 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
or the Guarantor shall so determine, any other Debt of the Company, the
Guarantor 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, the Guarantor and their 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, the Guarantor 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;
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(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, 1993 by the Company, the
Guarantor or any of their Restricted Subsidiaries or (ii) the financing of
a project involving the development or expansion of properties of the
Company, the Guarantor or any of their 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, the Guarantor or any of
their Restricted Subsidiaries or any assets of the Company, the Guarantor
or any of their 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, further, 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), neither the Company nor the Guarantor will
itself, nor will either of them 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, the Guarantor or
a Restricted Subsidiary of any Principal Property which has been or is to be
sold or transferred by the Company, the Guarantor 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, the Guarantor or a Restricted Subsidiary, within 180
days after the sale or transfer shall have been made by the Company, the
Guarantor 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 or
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the Guarantor) to (a) the retirement of Funded Debt of the Company or the
Guarantor ranking on a parity with or senior to the Securities or the
Guarantees, respectively, 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, the Guarantor 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, the Guarantor 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 or the Guarantor, 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 or the Guarantor and a Restricted Subsidiary or between Restricted
Subsidiaries.
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Section 10.10 Waiver of Certain Covenants.
---------------------------
The Company or the Guarantor 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
Guarantor 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
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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.
The Trustee shall promptly notify the Company and the Guarantor 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,
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(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.
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 or the Guarantor 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
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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 and the Guarantor 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 Stated (except as
otherwise provided
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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 and the Guarantor
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, the Guarantor and any Affiliate of either of them 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, the Guarantor or any Affiliate of either of them 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 or the Guarantor 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 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.
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
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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 and the Guarantor's Option to Effect Defeasance or
------------------------------------------------------------
Covenant Defeasance.
-------------------
The Company or the Guarantor may elect, at their respective 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 or the Guarantor'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
and the Guarantor 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 and the Guarantor 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
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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 and the Guarantor's respective 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 or the Guarantor 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 exercise by the Company or the Guarantor, as the case may be,
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 and the
Guarantor shall be released from their 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
and the Guarantor 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 or the Guarantor, as the case may be, 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
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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 or the
Guarantor, as the case may be, 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
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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 or the Guarantor is a party or by which
it is bound.
(h) The Company or the Guarantor, as the case may be, 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.
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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 or the Guarantor 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 or the Guarantor, as the case may be, 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 or the Guarantor, as the case may
be, from time to time upon Company Request or Guarantor 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
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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
Exchange of Securities
Section 14.1 Applicability; Exchange Privilege and Exchange Price.
----------------------------------------------------
Securities of any series which are exchangeable into Common Stock of
the Guarantor shall be exchangeable 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 exchanged at the principal amount thereof, or of such portion thereof, into
fully paid and nonassessable shares (calculated as to each exchange to the
nearest 1/100 of a share) of Common Stock of the Guarantor at the exchange
price, determined as hereinafter provided, in effect at the time of exchange.
Such exchange 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, such exchange 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
exchange (herein called the "exchange price") shall be the price specified in
relation to Securities of such series pursuant to Section 3.1. The exchange
price shall be adjusted in certain instances as provided in this Article.
Section 14.2 Exercise of Exchange Privilege.
------------------------------
In order to exercise the exchange privilege, the Holder of any
Security to be exchanged shall surrender such Security, duly endorsed or
assigned to the Guarantor or in blank, at any office or agency of the Guarantor
maintained for that purpose pursuant to Section 10.2, accompanied by written
notice to the Guarantor (which shall be substantially in the form set forth in
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Section 2.3) at such office or agency that the Holder elects to exchange such
Security or, if less than the entire principal amount thereof is to be
exchanged, the portion thereof to be exchanged. Securities surrendered for
exchange 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 Guarantor of an amount equal to the interest payable on
such Interest Payment Date on the principal amount of Securities being
surrendered for exchange. 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 exchange
of such Security after such Regular Record Date and prior to such Interest
Payment Date, and the Holder exchanging such Security need not include a payment
of such interest payment amount upon surrender of such Security for exchange.
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 exchange on
account of any interest accrued on the Securities surrendered for exchange or on
account of any dividends on the Common Stock issued upon exchange.
Securities shall be deemed to have been exchanged immediately prior to
the close of business on the day of surrender of such Securities for exchange 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 exchange 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 exchange date, the Guarantor 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 exchange, together
with payment in lieu of any fraction of a share, as provided in Section 15.3.
In the case of any Security which is exchanged in part only, upon such
exchange the Company and the Guarantor 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 unexchanged portion of the principal amount of such
Security.
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Section 14.3 Fractions of Shares.
-------------------
No fractional shares of Common Stock of the Guarantor shall be issued
upon exchange of Securities. If more than one Security shall be surrendered for
exchange at one time by the same Holder, the number of full shares which shall
be issuable upon exchange 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 exchange of any Security or Securities (or specified
portions thereof), the Guarantor 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 exchange.
Section 14.4 Adjustment of Exchange Price.
----------------------------
(a) In case the Guarantor shall pay or make a dividend or other
distribution on any class of capital stock of the Guarantor in Common
Stock, the exchange 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 exchange 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 Guarantor but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock of the Guarantor. The Guarantor will not pay any
dividend or make any distribution on shares of Common Stock of the
Guarantor held in the treasury of the Guarantor.
(b) In case the Guarantor 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 (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 exchange price in effect at the opening of
business on the day following the date fixed for such determination shall
be
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reduced by multiplying such exchange 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 Guarantor but shall
include shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock. The Guarantor will not issue any
rights or warrants in respect of shares of Common Stock held in the
treasury of the Guarantor.
(c) In case outstanding shares of Common Stock of the Guarantor shall
be subdivided into a greater number of shares of Common Stock, the exchange
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
exchange 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 Guarantor 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 Guarantor and any dividend or distribution
referred to in paragraph (a) of this Section), the exchange price shall be
adjusted so that the same shall equal the price determined by multiplying
the exchange price in effect immediately prior to the close of business on
the date fixed 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 of the
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Guarantor, 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 Guarantor and
The Chase Manhattan Bank, N.A., as in effect on the date hereof (the
"Rights Agreement"), exchanging 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 exchange) to the shares of
Common Stock received upon such exchange, then adjustment of the exchange
price shall be made under the preceding sentence as if the Rights were then
being distributed to holders of the Guarantor'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
exchange price, on an equitable basis, to take account of such event.
However, it is hereby agreed that the Guarantor may elect to amend the
provisions presently applicable to the Rights so that each share of Common
Stock issuable upon exchange 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 exchange) to
such shares of Common Stock, in which event the preceding two sentences
will not apply.
(e) The reclassification of Common Stock of the Guarantor 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 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).
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(f) For the purpose of any computation under paragraphs (b) and (d) of
this Section, the current market price per share of Common Stock of the
Guarantor 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 Guarantor may make such reductions in the exchange 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 Guarantor 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 exchange price shall be required unless such
adjustment would require an increase or decrease of at least one percent in
such exchange 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
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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 Exchange Price.
---------------------------------------
Whenever the exchange price is adjusted as herein provided:
(a) the Guarantor shall compute the adjusted exchange price in
accordance with Section 14.4 and shall prepare a certificate signed by the
Treasurer of the Guarantor setting forth the adjusted exchange 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 exchange of Securities pursuant to Section
10.2; and
(b) a notice stating that the exchange price has been adjusted and
setting forth the adjusted exchange price shall forthwith be required, and
as soon as practicable after it is required, such notice shall be mailed by
the Guarantor 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 Guarantor 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 Guarantor 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 Guarantor
(other than a subdivision or combination of its outstanding shares of
Common Stock), or of any consolidation, merger or share exchange to which
the Guarantor is a party and for which approval of any stockholders of the
Guarantor is required, or of the sale or transfer of all or substantially
all of the assets of the Guarantor; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Guarantor then the Guarantor shall cause to be filed at
each office or agency maintained for the purpose of exchange 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
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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 exchange agent, a copy of such
notice shall also forthwith be filed by the Guarantor with the Trustee.
Not less than seven days prior to the Distribution Date (as defined in
Section 14.4(d)), the Guarantor shall cause to be filed at each office or agency
maintained for the purpose of exchange 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
exchange agent, a copy of such notice shall also forthwith be filed by the
Guarantor with the Trustee.
Section 14.7 Guarantor to Reserve Common Stock.
---------------------------------
The Guarantor shall at all times reserve and keep available out of its
authorized but unissued Common Stock, for the purpose of effecting the exchange
of Securities, the full number of shares of Common Stock then issuable upon the
exchange of all Outstanding Securities.
Section 14.8 Taxes on Exchanges.
------------------
The Company will pay any and all transfer taxes that may be payable
in respect of the issue or delivery of shares of Common Stock on exchange of
Securities pursuant hereto. The Guarantor shall not, however, be required to
pay any tax which may be
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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 exchanged, and no such issue or delivery shall be made unless
and until the Person requesting such issue has paid to the Guarantor the amount
of any such tax, or has established to the satisfaction of the Guarantor that
such tax has been paid.
Section 14.9 Covenant as to Common Stock.
---------------------------
The Guarantor covenants that all shares of Common Stock which may be
issued upon exchange of Securities will upon issue be fully paid and
nonassessable and, except as provided in Section 15.8, the Guarantor will pay
all taxes, liens and charges with respect to the issue thereof.
Section 14.10 Cancellation of Exchanged Securities.
------------------------------------
All Securities delivered for exchange 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 Guarantor with, or merger of the
Guarantor into, any other Person, any merger of another Person into the
Guarantor (other than a merger which does not result in any reclassification,
exchange, exchange or cancellation of outstanding shares of Common Stock of the
Guarantor) or any sale or transfer of all or substantially all of the assets of
the Guarantor, 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 exchangeable Security then outstanding shall have the right thereafter,
during the period such Security shall be exchangeable as specified in Section
14.1, to exchange 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 Guarantor
into which such Security might have been exchanged immediately prior to such
consolidation, merger, sale or transfer, assuming such holder of Common Stock of
the Guarantor 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 upon such consolidation, merger,
sale or transfer is not the same for each share of Common Stock of the Guarantor
in respect of
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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 exchange 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 exchange 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
exchange agent shall be accountable with respect to the registration, validity
or value (or the kind or amount) of any shares of Common Stock of the Guarantor,
or of any securities or property, which may at any time be issued or delivered
upon the exchange of any Security; and neither the Trustee nor any exchange
agent makes any representation with respect thereto. Neither the Trustee nor
any exchange agent shall be responsible for any failure of the Guarantor 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 exchange or to comply with any of the covenants of
the Guarantor contained in this Article XIV.
ARTICLE XV
Subordination of Securities
[This Article shall be reserved, unless pursuant to a Board Resolution with
respect to the Securities of any series, the Securities of such series are
designated as Senior Subordinated Indebtedness or Subordinated Indebtedness, in
which case the following provisions should be inserted.]
Section 15.1 Securities Subordinate to Senior Indebtedness.
---------------------------------------------
(a) 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
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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.
(b) The Guarantor covenants and agrees, and each Holder of Securities
of each series, by his acceptance thereof, likewise covenants and agrees,
that the indebtedness represented by the Guarantees affixed to the
Securities of such series, and the payment of the Indebtedness represented
by the Guarantees affixed to the Securities of such series, shall be
subordinate and subject in right of payment, to the extent and in the
manner hereinafter set forth, to the prior payment in full of all Senior
Indebtedness of the Guarantor with respect thereto, whether outstanding on
the date of original issuance of the Guarantees affixed to the Securities
of such series or thereafter incurred.
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 the Guarantor or
to their respective creditors, as such, or to their respective assets, or (b)
any liquidation, dissolution or other winding up of the Company or the
Guarantor, 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 or the Guarantor,
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 coupons
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 Guarantee or coupons
appertaining thereto shall have received any payment or distribution of assets
of the Company or the Guarantor of any kind or character, whether in cash,
property
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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 or the Guarantor 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 or the
Guarantor as reorganized or readjusted, or securities of the Company or the
Guarantor 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 or the Guarantor
with, or the merger of the Company or the Guarantor into, another Person or the
liquidation or dissolution of the Company or the Guarantor 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 or the Guarantor for the purposes of this Section if the Person formed
by such consolidation or into which the Company or the Guarantor 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 or the
Guarantor on account of the principal of (or
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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 exchanged pursuant to Article XIV.
In the event that, notwithstanding the foregoing, the Company or the
Guarantor 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 or the Guarantor, as the case may be.
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, with respect to any
Senior Indebtedness and the Guarantees with respect thereto, 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 or the Guarantor 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 exchanged pursuant to
Article XIV.
In the event that, notwithstanding the foregoing, the Company or the
Guarantor shall make any payment to the Trustee or the Holder of any Security
and any coupons appertaining thereto
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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 or the Guarantor, as the case
may be.
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 or the Guarantor, 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 or the Guarantor 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 and the Guarantor 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 and the Guarantees 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 and Guarantees 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 Guarantees and any coupons
appertaining thereto or the Trustee, shall, as among the Company, the Guarantor,
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 or the Guarantor, as the case may be, to or on
account of the Senior Indebtedness.
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<PAGE>
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
Guarantees 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 Guarantees and any coupons
appertaining thereto is intended to or shall (a) impair, as among the Company or
the Guarantor, as the case may be, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities and Guarantees and any coupons
appertaining thereto, the obligation of the Company or the Guarantor, as the
case may be, 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 and the
Guarantor), to pay to the Holders of the Securities and Guarantees and any
coupons appertaining thereto the principal of (and premium, if any) and interest
on the Securities and Guarantees 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 Guarantees and any coupons appertaining thereto and creditors of
the Company or the Guarantor, as the case may be, other than the holders of
Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Security
and Guarantee 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 a Guarantee 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 the Guarantor, as the case may be, or by any act or failure to act, in good
faith, by any such holder, or by any non-compliance by the Company or the
Guarantor, as the case may be, with the terms, provisions and
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<PAGE>
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 Guarantees 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 Guarantees 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, the
Guarantor and any other Person.
Section 15.10 Notice to Trustee.
-----------------
The Company or the Guarantor, as the case may be, shall give prompt
written notice to the Trustee of any fact known to the Company or the Guarantor,
as the case may be, which would prohibit the making of any payment to or by the
Trustee in respect of the Securities and Guarantees 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 Guarantees and any coupons
appertaining thereto, unless and until the Trustee shall have received written
notice thereof from the Company, the Guarantor 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
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<PAGE>
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 15.11 Reliance on Judicial Order or Certificate of Liquidating Agent.
--------------------------------------------------------------
Upon any payment or distribution of assets of the Company or the
Guarantor, as the case may be, 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 Guarantees 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 or the Guarantor, as
the case may be, 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 Guarantees
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<PAGE>
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.
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 or the Guarantor 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 the Guarantor or
- -------
any Affiliate of the Company or the Guarantor if it or such Affiliate acts as
Paying Agent.
Section 15.15 Certain Exchanges Deemed Payment.
--------------------------------
For the purposes of this Article only, (a) the issuance and delivery
of junior securities upon exchange 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 Guarantees and any coupons
appertaining thereto or on account of the purchase or other acquisition of
Securities and Guarantees and any coupons appertaining thereto, and (b) the
payment, issuance or delivery of cash, property or securities (other than junior
securities) upon exchange 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 Guarantor 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
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<PAGE>
subordinated as provided in this Article. Nothing contained in this Article or
elsewhere in this Indenture or in the Securities or the Guarantees is intended
to or shall impair, as among the Company or the Guarantor, their respective
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 exchange such Security in accordance with Article XIV.
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 and the Guarantees or any coupons appertaining
thereto shall be obligated to pay over any such amount to the Company or the
Guarantor or any holder of Senior Indebtedness of the Company or the Guarantor
or any other creditor of the Company or the Guarantor.
ARTICLE XVI
Guarantees
[If, pursuant to a Board Resolution, the Guarantees are designated as Senior
Subordinated Indebtedness or Subordinated Indebtedness of the Guarantor, the
bracketed provisions should be inserted, otherwise, all bracketed provisions
should be deleted.]
Section 16.1 Guarantee.
---------
The Guarantor hereby fully, unconditionally and irrevocably guarantees
[on a senior subordinated] [on a subordinated basis] to each Holder of a
Security, and to the Trustee on behalf of each such Holder, the performance of
all obligations of the Company under this Indenture and the Securities. In case
of the failure of the Company or any successor thereto punctually to pay any
amounts due, the Guarantor hereby agrees to cause any such payment to be made
punctually when and as the same shall become due and payable, as if such payment
were being made by the Company.
Until the Holders of the Securities or the Trustee have received, from
the Company or from the Guarantor, moneys which such Holders or the Trustee are
entitled to retain for or on behalf of such Holders, equal to the aggregate of
the unpaid principal amount on the Securities plus all accrued and unpaid
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<PAGE>
interest thereon, the Guarantor will remain liable on the Guarantee.
[The Guarantee constitutes a guarantee of payment and is unsecured and
is (i) subordinate in right of payment to the prior payment in full of all
principal of, and premium (if any) and interest on, all existing and future
Senior Indebtedness of the Guarantor to the same extent that the obligations of
the Company under the Indenture and the Securities are subordinate in right of
payment to the prior payment in full of all principal of, and premium (if any)
and interest on, all existing and future Senior Indebtedness of the Company in
accordance with Article XV, and (ii) with respect to Guarantees that are
designated Senior Subordinated Indebtedness of the Guarantor, pari passu with
---- -----
all other Senior Subordinated Indebtedness of the Guarantor to the same extent
that the obligations of the Company under the Indenture and the Securities are
pari passu with all other Senior Subordinated Indebtedness of the Company in
- ---- -----
accordance with Article XV.]
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional and absolute, irrespective of the invalidity, irregularity or
unenforceability of any such Security or this Indenture, the absence of any
action to enforce the same, the granting of any waiver or consent by the Trustee
or the Holder of any such Security with respect to any provisions thereof, the
recovery of any judgment against the Company or any action to enforce the same,
or any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and covenants
that this Guarantee will not be discharged except by complete performance of the
obligations contained in any such Security and in this Guarantee.
If the Trustee or the Holder of any Security is required by any court
or otherwise to return to the Company or the Guarantor, or any custodian,
receiver, liquidator, trustee, sequestrator or other similar official acting in
relation to the Company or the Guarantor, any amount paid to the Trustee or such
Holder in respect of a Security, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. The Guarantor further
agrees, to the fullest extent that it may lawfully do so, that, as between the
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand,
the maturity of the obligations guaranteed hereby may be accelerated as provided
in Article V hereof for the purposes of this Guarantee, notwithstanding any
stay, injunction or other prohibition extant under any applicable bankruptcy law
preventing such acceleration in respect of the obligations guaranteed hereby.
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<PAGE>
The Guarantor hereby irrevocably waives any claim or other rights
which it may now or hereafter acquire against the Company that arises from the
existence, payment, performance or enforcement of the Guarantor's obligations
under this Guarantee, including, without limitation, any right to participate in
any claim or remedy of any Holder of any Security and the Trustee on behalf of
such Holder against the Company or any collateral which any such Holder or the
Trustee on behalf of such Holder hereafter acquires, whether or not such claim,
remedy or right arises in equity, or under contract, statute or common law,
including, without limitation, the right to take or receive from the Company,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim or other rights. If any
amount shall be paid to the Guarantor in violation of the preceding sentence at
any time prior to the payment in full of all obligations and all other amounts
payable under this Guarantee, such amount shall be deemed to have been paid to
the Guarantor for the benefit of, and held in trust for the benefit of, any
Holder of any Security and the Trustee on behalf of such Holder, and shall
forthwith be paid to the Trustee for the benefit of such Holder to be credited
and applied upon such guaranteed obligations, whether matured or unmatured, in
accordance with the terms of this Indenture. The Guarantor acknowledges that
the waiver set forth in this Section 16.1 is knowingly made.
Section 16.2 Execution and Delivery of Guarantees.
------------------------------------
To evidence its Guarantee provided in this Article XVI, the Guarantor
hereby agrees to execute the Guarantees, substantially in the form of the Form
of Guarantee included in Section 2.3, in the manner provided in Article III.
The delivery of any Securities by the Trustee, after the
authentication thereof hereunder, shall constitute the due delivery of the
Guarantees endorsed thereon on behalf of the Guarantor. The Guarantor hereby
agrees that its Guarantees set forth in this Article shall remain in full force
and effect notwithstanding any failure to endorse on each Security a notation of
such Guarantee.
________________________________________
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
CYPRUS AMAX FINANCE CORPORATION
Attest:
By
- ----------------------------- -----------------------------
CYPRUS AMAX MINERALS COMPANY
Attest:
By
- ----------------------------- -----------------------------
------------------, as Trustee
Attest:
By
- ----------------------------- -----------------------------
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 Finance Corporation, 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
-115-
<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
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<PAGE>
[LETTERHEAD OF DAVIS, GRAHAM & STUBBS, L.L.C. APPEARS HERE]
July 12, 1994
Cyprus Amax Minerals Company
Cyprus Amax Finance Corp.
9100 East Mineral Circle
Englewood, Colorado 80112-3299
Re: Registration Statement on Form S-3
Relating to $500,000,000 Aggregate
Principal Amount of Debt and Equity Securities
----------------------------------------------
Gentlemen:
We have acted as counsel for Cyprus Amax Minerals Company, a
Delaware corporation (the "Company") and Cyprus Amax Finance Corp., a Delaware
corporation ("Finance"), in connection with the preparation of a Registration
Statement on Form S-3 (No. 33-54097) (the "Registration Statement") filed by
the Company and Finance with the Securities and Exchange Commission. The
Registration Statement relates to the registration under the Securities Act of
1933 (the "1933 Act") of an aggregate of $500,000,000 principal amount of debt
securities which may be issued by the Company or Finance (the "Debt
Securities") and equity securities which may be issued by the Company (the
"Equity Securities") (together the "Securities").
This opinion is delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the 1933 Act.
We have examined the forms of the Indentures filed by the Company and
Finance as exhibits to the Registration Statement (the "Indentures"). In
addition, we have examined and relied on originals or copies, certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments, have made such inquiries as to questions of fact of
officers and representatives of the Company and Finance and have made such
examinations of law as we have deemed necessary or appropriate for purposes of
giving the opinion expressed below. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to
us as
<PAGE>
July 12, 1994
Page 2
originals and the conformity with the originals of all documents submitted to
us as copies.
We have assumed for purposes of this opinion (i) the corporate power,
authority and legal right of the trustee or trustees (the "trustees") under
the Indentures to execute, deliver and perform their obligations under the
Indentures, that the performance of such obligations by the trustees will not
violate their charter or by-laws and that the trustees have the legal ability
to exercise their trust powers in the State of Colorado and (ii) that the
Indentures will have been duly authorized, executed and delivered by the
applicable trustee at the time of issuance of Debt Securities.
We are members of the bar of the State of Colorado, and the opinion
set forth below is restricted to matters controlled by federal laws and the
laws of the State of Colorado.
Based upon and subject to the foregoing, we are of the opinion that:
1. The issuance and sale by the Company and Finance of up to
$500,000,000 of Securities, as provided in the Registration Statement, have
been duly and validly authorized by all necessary corporate action of the
Company and Finance.
2. The Equity Securities, when issued and sold as provided in the
Registration Statement, will be legally issued, fully paid and non-assessable.
3. When (i) the Registration Statement has become effective under
the 1933 Act, (ii) the applicable Indenture has been qualified under the Trust
Indenture Act of 1939 and has been duly executed and delivered by the parties
thereto, (iii) the definitive terms of any Debt Securities and of their issue
and sale have been duly established in conformity with the resolutions of the
board of directors of the Company and, if applicable, Finance and the
applicable Indentures so as not to violate any applicable law or agreement or
instrument then binding on the Company and, if applicable, Finance, (iv) such
Debt Securities have been duly executed and authenticated in accordance with
the Indentures and (v) such Debt Securities have been issued and sold as
contemplated in the Registration Statement, the prospectus contained therein
(the "Prospectus") and in the applicable supplement to the Prospectus, such
Debt Securities will constitute valid and legally binding obligations of the
Company and, if applicable, Finance, entitled to the benefits provided by the
applicable Indentures, except (A) the
<PAGE>
July 12, 1994
Page 3
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (B) the remedy
of specific performance and injunctive and other forms of equitable relief may
be subject to certain equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
We hereby consent to the filing of this opinion with the Commission
as Exhibit 5 to the Registration Statement. We also consent to the reference
to this firm under the heading "Validity of Securities" in the Prospectus
included in the Registration Statement as the counsel who will pass upon the
validity of the securities. In giving this consent, we do not thereby admit
that we are in the category of persons whose consent is required under Section
7 of the Securities Act or the rules of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/ Davis, Graham & Stubbs, L.L.C.
DAVIS, GRAHAM & STUBBS, L.L.C.
<PAGE>
EXHIBIT 15
July 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 this Amendment No. 1 to the Registration Statement on
Form S-3 (No. 33-54097) to be filed on or about July 6, 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 Amendment No. 1 to the Registration Statement on
Form S-3 (No. 33-54097) 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
July 7, 1994
<PAGE>
[LETTERHEAD OF COOPERS & LYBRAND APPEARS HERE]
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in Amendment No. 1 to the
Registration Statement on Form S-3 of Cyprus Amax Minerals Company and Cyprus
Amax Finance Corp. (the "Registration Statement") (File No. 33-54097) 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. 33-54097).
/s/ Coopers & Lybrand
COOPERS & LYBRAND
New York, New York
July 7, 1994
