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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 11, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
FRUIT OF THE LOOM, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 36-3361804
(State of Incorporation) (I.R.S. Employer Identification No.)
</TABLE>
5000 SEARS TOWER, 233 SOUTH WACKER DRIVE, CHICAGO, ILLINOIS 60606, (312)
876-1724
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
LARRY K. SWITZER
SENIOR EXECUTIVE VICE PRESIDENT
AND CHIEF FINANCIAL OFFICER
5000 SEARS TOWER, 233 SOUTH WACKER DRIVE, CHICAGO, ILLINOIS 60606, (312)
876-1724
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
With a copy to:
HOWARD S. LANZNAR
MARK D. WOOD
KATTEN MUCHIN & ZAVIS
525 WEST MONROE STREET, SUITE 1600, CHICAGO, ILLINOIS 60661, (312) 902-5200
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering: [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
If the delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box: [ ]
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT PRICE(1) FEE
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Debt Securities...................................
Preferred Stock, par value $.01 per share.........
Class A Common Stock, par value $.01 (2) (2) $850,000,000 $257,576
per share (including preferred stock
purchase rights)(3).............................
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</TABLE>
(1) The maximum aggregate offering price of Debt Securities, Preferred Stock and
Class A Common Stock registered hereunder shall not exceed $850,000,000.
(2) Not applicable pursuant to General Instruction II.D. of Form S-3 under the
Securities Act of 1933, as amended.
(3) In addition, the Registrant is registering Class A Common Stock that may be
issued from time to time upon conversion of convertible Debt Securities or
convertible Preferred Stock. Because this additional Class A Common Stock is
issuable only upon the conversion of convertible Debt Securities or
convertible Preferred Stock, no registration fee is required with respect to
such Class A Common Stock pursuant to the provisions of Rule 457(i).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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SUBJECT TO COMPLETION DATED JULY 11, 1997
PROSPECTUS
FRUIT OF THE LOOM LOGO
DEBT SECURITIES
PREFERRED STOCK
CLASS A COMMON STOCK
Fruit of the Loom, Inc. (the "Company") may from time to time offer (i)
debt securities ("Debt Securities") consisting of debentures, notes and/or other
evidences of indebtedness, in one or more series, (ii) shares of preferred
stock, par value $.01 per share ("Preferred Stock"), in one or more series, or
(iii) shares of Class A common stock, par value $.01 per share (including
preferred stock purchase rights) ("Class A Common Stock" and, collectively with
the Debt Securities and Preferred Stock, being hereinafter referred to as
"Securities"), or any combination of the foregoing, at an aggregate initial
offering price not to exceed $850,000,000, at prices and on terms to be
determined at or prior to the time of the sale.
Specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in an accompanying Prospectus Supplement (the
"Prospectus Supplement"), together with the terms of the offering of such
Securities and the initial price and the net proceeds to the Company from their
sale. Without limiting the foregoing, the Prospectus Supplement will set forth
the following: (i) in the case of Debt Securities, the specific designation,
aggregate principal amount, ranking as senior debt or subordinated debt,
authorized denomination, maturity, rate or method of calculation of interest and
dates for payment thereof, nature and terms of any security, any
exchangeability, conversion, redemption, prepayment or sinking fund provisions,
the trustee, additional covenants or events of default, tax consequences, and
the currency or currencies or currency unit or currency units in which
principal, premium, if any, or interest, if any, is payable; (ii) in the case of
Preferred Stock, the designation, number of shares, liquidation preference per
share, dividend rate (or method of calculation thereof), dates on which
dividends, if any, shall be payable and from which dividends shall accrue,
voting rights, if any, any redemption or sinking fund provisions, and any
conversion or exchange rights; and (iii) in the case of Class A Common Stock,
the number of shares.
The Class A Common Stock is listed on the New York Stock Exchange under the
symbol "FTL." Any Class A Common Stock sold pursuant to a Prospectus Supplement
will be listed on the New York Stock Exchange, subject to official notice of
issuance. The Company has not yet determined whether any of the Debt Securities
or Preferred Stock offered hereby will be listed on any exchange or
over-the-counter market. If the Company decides to seek listing of any such
Securities, the Prospectus Supplement relating thereto will disclose such
exchange or market.
The Company may sell the Securities directly, through agents, underwriters
or dealers, as designated from time to time, or through a combination of any
such methods. See "Plan of Distribution." If any agents of the Company or any
underwriters or dealers are involved in the sale of the Securities, the names of
such agents, underwriters or dealers and any applicable commissions and
discounts will be set forth in the Prospectus Supplement.
------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------------
THE DATE OF THIS PROSPECTUS IS , 1997.
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 SUCH STATE.
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AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (herein, together with all
amendments and exhibits, referred to as the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"). This Prospectus,
which constitutes a part of the Registration Statement, does not contain all of
the information set forth in the Registration Statement, certain parts of which
are omitted as permitted by the rules and regulations of the Commission. For
further information, reference is hereby made to the Registration Statement.
Statements made in this Prospectus as to the contents of any contract, agreement
or other document are not necessarily complete. With respect to each such
contract, agreement or other document filed as an exhibit to the Registration
Statement or otherwise filed with the Commission, reference is made to the copy
so filed, and each such statement shall be deemed qualified in its entirety by
such reference.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy and information statements, and other information
with the Commission. The Registration Statement, as well as such reports, proxy
and information statements, and other information filed by the Company with the
Commission, can be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549,
and at the regional offices of the Commission at 7 World Trade Center, Suite
1300, New York, New York 10048 and Citicorp Center, 500 West Madison Street,
Chicago, Illinois 60661. Copies of such material also can be obtained at
prescribed rates from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549. The Class A Common Stock is listed
on the New York Stock Exchange, and reports and other information concerning the
Company may be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005. Certain other securities of the Company are
listed on the American Stock Exchange, and reports and other information
concerning the Company may also be inspected at the offices of the American
Stock Exchange, 86 Trinity Place, New York, New York 10006. Copies of reports,
proxy and information statements and other information regarding registrants
that file electronically (including the Company) are available on the
Commission's Web Site at http://www.sec.gov.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to the Exchange Act are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the year ended December
31, 1996;
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1997;
(3) The description of the Class A Common Stock contained in the Company's
Registration Statement on Form 8-A filed on September 19, 1986 pursuant
to Section 12 of the Exchange Act and all amendments thereto and
reports filed for the purposes of updating such description; and
(4) The description of the preferred stock purchase rights contained in the
Company's Registration Statement on Form 8-A filed on March 11, 1996
pursuant to Section 12 of the Exchange Act and all amendments thereto
and reports filed for the purposes of updating such description.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Securities shall be deemed incorporated
by reference in this Prospectus and a part hereof from the respective date of
filing of each such document. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
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The Company will provide, without charge, to each person to whom a copy of
this Prospectus has been delivered, upon the written or oral request of any such
person, a copy of any or all of the documents referred to above that have been
incorporated in this Prospectus by reference (other than exhibits thereto,
unless such exhibits are specifically incorporated by reference into the
information that this Prospectus incorporates). Requests for such copies should
be directed to Fruit of the Loom, Inc., 5000 Sears Tower, 233 South Wacker
Drive, Chicago, Illinois 60606, Attention: Secretary (telephone (312) 876-1724).
SAFE HARBOR FOR FORWARD-LOOKING STATEMENTS
This Prospectus contains, any Prospectus Supplement will contain, and the
documents incorporated by reference herein contain or will contain certain
statements which describe the Company's beliefs concerning future business
conditions and the outlook for the Company, based on currently available
information. Wherever possible, the Company has identified these
"forward-looking" statements (as defined in Section 27A of the Securities Act)
by words such as "anticipates," "believes," "estimates," "expects" and similar
expressions. These forward-looking statements are subject to risks and
uncertainties which could cause the Company's actual results, performance or
achievements to differ materially from those expressed in, or implied by, these
statements. These risks and uncertainties include, but are not limited to, the
following: financial strength of the retail industry (particularly the mass
merchant channel), the level of consumer spending for apparel, the amount of
sales of the Company's activewear screenprint products, the competitive pricing
environment within the basic apparel segment of the apparel industry, the
Company's ability to develop new products, the Company's effective income tax
rate, the Company's ability to successfully move labor-intensive segments of the
manufacturing process offshore, the success of planned advertising, marketing
and promotional campaigns and international activities, and the resolution of
legal proceedings and other contingent liabilities. The Company assumes no
obligation to update publicly any forward-looking statements, whether as a
result of new information, future events or otherwise.
THE COMPANY
The Company is a marketing oriented, vertically integrated international
basic apparel company, emphasizing branded products for consumers ranging from
infants to senior citizens. The Company is one of the largest domestic producers
of men's, boys', women's and girls' underwear and of activewear for the
imprinted market, selling products principally under the FRUIT OF THE LOOM(R),
BVD(R), SCREEN STARS(R), BEST(TM), MUNSINGWEAR(R), WILSON(R), BOTANY 500(R) AND
JOHN HENRY(R) brand names. The Company also manufacturers and markets sports
licensed apparel bearing the names, tradenames and logos of the National
Football League, the National Basketball Association, Major League Baseball and
the National Hockey League, professional sports teams and many colleges and
universities in the United States, as well as the likenesses of certain popular
professional athletes, under the PRO PLAYER(R) and FANS GEAR(R) brands.
Additionally, the Company manufactures and markets casualwear, jeanswear under
the GITANO(R) brand name, and infants' and toddlers' apparel.
The Company is a fully integrated manufacturer, performing most of its own
spinning, knitting, cloth finishing, cutting, sewing and packaging. The Company
has established manufacturing operations in Honduras, El Salvador and Jamaica,
in addition to contracting with various third parties in Mexico and the
Caribbean, to assemble fabrics which have been manufactured and cut either in
the Company's U.S. operations or by external sources into finished goods for
sale principally in the United States. Management believes that the Company is
one of the lowest cost producers in each of the principal markets it serves.
Management considers the Company's primary strengths to be its excellent brand
recognition, cost-effective production, strong relationships with mass
merchandisers and discount chains and its ability to effectively service its
customer base. Management also believes that consumer awareness of the value and
excellent quality at competitive prices of FRUIT OF THE LOOM products will
benefit the Company in the current retail environment in which consumers are
more value conscious.
The Company extensively markets its activewear and, to a lesser extent,
other products outside the United States, principally in Europe, Canada, Japan
and Mexico. To serve these markets, the Company has
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manufacturing plants in Canada, the Republic of Ireland and Northern Ireland
(United Kingdom), as well as manufacturing operations in Morocco where cut
fabrics from the Republic of Ireland are sewn and returned to Europe for sale.
The Company was incorporated in 1985 under the laws of the State of
Delaware. Its principal executive offices are located at 5000 Sears Tower, 233
South Wacker Drive, Chicago, Illinois, 60606, and its telephone number is (312)
876-1724. Unless the context indicated otherwise, references to the Company mean
Fruit of the Loom, Inc. and its subsidiaries.
USE OF PROCEEDS
The Company does not currently have specific plans for the use of the net
proceeds from the sale of the Securities and currently anticipates that any such
net proceeds would be used for general corporate purposes, including, but not
limited to, working capital, capital expenditures, expansion of existing
properties, development of new projects, prepayment of outstanding indebtedness,
investments and acquisitions. When Securities are offered, the Prospectus
Supplement related thereto will set forth the Company's intended use for the net
proceeds received from the sale of such Securities. Pending the application of
the net proceeds, the Company expects to invest such proceeds in short-term,
interest-bearing instruments or other investment-grade securities.
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred stock dividends for the Company
and its consolidated subsidiaries for the periods indicated.
<TABLE>
<CAPTION>
THREE MONTHS
ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
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1997 1996 1996 1995 1994 1993 1992
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Ratio of earnings to fixed charges(1)........ 2.2x 1.7x 2.5x * 2.2x 5.3x 4.4x
Ratio of earnings to combined fixed charges
and preferred stock dividends(2)........... 2.2x 1.7x 2.5x * 2.2x 5.3x 4.4x
</TABLE>
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* Earnings were insufficient to cover fixed charges for the year ended
December 31, 1995 by $247.2 million.
(1) The ratio of earnings to fixed charges is calculated by dividing (i) fixed
charges plus pretax earnings from continuing operations by (ii) fixed
charges. Fixed charges consist of interest expense, the interest component
of rent expense, amortization of deferred financing costs and guarantor debt
charges. Guarantor debt charges are the estimated interest related to the
Company's evaluation of its exposure under its guarantee of debt incurred by
Acme Boot Company, Inc., an affiliate of the Company. Approximately $0.6
million of guarantor debt charges are included in fixed charges for the year
ended December 31, 1996 and the three months ended March 31, 1997,
respectively.
(2) The ratio of earnings to combined fixed charges and preferred stock
dividends is calculated by dividing (i) fixed charges plus pretax earnings
from continuing operations by (ii) fixed charges plus preferred stock
dividends. The Company had no shares of preferred stock outstanding, and no
dividends were declared or paid, during any of the periods indicated.
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DESCRIPTION OF DEBT SECURITIES
The following description of the Debt Securities sets forth certain general
terms and provisions of the Debt Securities to which any Prospectus Supplement
may relate ("Offered Debt Securities"). The particular terms of the Offered Debt
Securities and the extent to which such general provisions may apply will be
described in the Prospectus Supplement relating to such Offered Debt Securities.
The Debt Securities will be general obligations of the Company, and each
series of Offered Debt Securities will constitute either senior debt securities
or subordinated debt securities. In the case of senior debt securities ("Senior
Debt Securities"), the Debt Securities will be issued under an Indenture (the
"Senior Indenture") to be executed by the Company and a trustee under the Senior
Indenture to be named in the applicable Prospectus Supplement. In the case of
subordinated debt securities ("Subordinated Debt Securities"), the Debt
Securities will be issued under an Indenture (the "Subordinated Indenture") to
be executed by the Company and a trustee under the Subordinated Indenture to be
named in the applicable Prospectus Supplement. The Senior Indenture and the
Subordinated Indenture are sometimes hereinafter referred to herein individually
as an "Indenture" and collectively as the "Indentures." The trustee under each
Indenture (and any successor thereto under each Indenture) is referred to herein
as the "Trustee." The statements under this caption relating to the Debt
Securities and the Indentures are summaries only and do not purport to be
complete. Such summaries make use of terms defined in the Indentures. Wherever
such terms are used herein or particular provisions of the Indentures are
referred to, such terms or provisions, as the case may be, are incorporated by
reference as part of the statements made herein, and such statements are
qualified in their entirety by such reference. Copies of the proposed forms of
the Senior Indenture and the Subordinated Indenture have been filed as exhibits
to the Registration Statement, of which this Prospectus is a part.
PROVISIONS APPLICABLE TO BOTH SENIOR AND SUBORDINATED DEBT SECURITIES
General. The Indentures do not limit the aggregate principal amount of Debt
Securities which can be issued thereunder and provide that Debt Securities may
be issued thereunder from time to time in one or more series, each in an
aggregate principal amount authorized by the Company prior to issuance. The
applicable Prospectus Supplement will set forth any limitations on the amount of
other indebtedness or securities which may be issued by the Company.
Reference is made to the Prospectus Supplement relating to the particular
series of Debt Securities offered thereby for the following terms of the Offered
Debt Securities: (i) the title and aggregate principal amount; (ii) the maturity
date or dates; (iii) the interest rate or rates (which may be fixed or variable)
per annum, if any, or the method of determining such rate or rates; (iv) the
date or dates from which such interest, if any, will accrue and the date or
dates on which such interest, if any, will be payable, the date on which payment
of such interest, if any, will commence and the record dates for determining
interest payments, if any; (v) the terms for redemption or early payment, if
any, including any mandatory or optional sinking fund or analogous provision;
(vi) whether such Offered Debt Securities will be secured or unsecured and, if
secured, the nature and terms of the security, (vii) the terms for conversion or
exchange, if any; (viii) the classification as Senior Debt Securities or
Subordinated Debt Securities; (ix) in the case of Offered Debt Securities
offered to foreign investors, whether such Offered Debt Securities will be
issued in fully registered form or in bearer form or any combination thereof;
(x) whether such Offered Debt Securities will be issued in the form of one or
more global securities and whether such global securities are to be issuable in
temporary global form or permanent global form; (xi) if other than U.S. dollars,
the currency or currencies or currency unit or units in which such Offered Debt
Securities will be denominated and in which the principal of, and premium, if
any, and interest, if any, thereon will be payable; (xii) whether, and the terms
and conditions on which, the Company or a holder may elect that, or the other
circumstances under which, payment of principal of, or premium, if any, or
interest, if any, is to be made in a currency or currencies or currency unit or
units other than that in which such Offered Debt Securities are denominated;
(xiii) any Events of Default (as defined below) with respect to the Offered Debt
Securities if not otherwise set forth under "Events of Default" below; (xiv) any
additions to, or changes in, the covenants which apply to the Offered Debt
Securities; (xv) a summary of the tax consequences to holders under United
States laws of owning the Offered
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Debt Securities, including the possible imposition of withholding taxes; (xvi)
the securities exchange or market, if any, on which the Offered Debt Securities
will be listed; and (xvii) any other specific terms of the Offered Debt
Securities.
Offered Debt Securities may be sold at a discount (which may be
substantial) below their stated principal amount or bear no interest or interest
at a rate which at the time of issuance is below market rates, or both.
No service charge will be made to any holder for any registration of
transfer or exchange of the Offered Debt Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
If any of the Offered Debt Securities are sold for any foreign currency or
currency unit or if the principal of, or premium, if any, or interest, if any,
on, any of the Offered Debt Securities is payable in any foreign currency or
currency unit, the restrictions, elections, tax consequences, specific terms and
other information with respect to such Offered Debt Securities and such foreign
currency or currency unit will be set forth in the Prospectus Supplement
relating thereto.
Events of Default. Unless otherwise provided in the Prospectus Supplement
with respect to any series of Offered Debt Securities, the following are "Events
of Default" under each Indenture with respect to each series of Debt Securities
issued under such Indenture: (a) failure for 30 days to pay any interest on any
Debt Security of such series when due; (b) failure to pay principal of (or
premium, if any, on) any Debt Security of such series when due; (c) failure for
60 days to deposit any mandatory sinking fund payment, when due, in respect of
the Debt Securities of such series; (d) failure for 90 days after written notice
as provided in the Indenture to perform any other covenant of the Company in the
Indenture (other than a covenant included in the Indenture for the benefit of a
series of Debt Securities other than such series); (e) certain events of
bankruptcy, insolvency or reorganization; and (f) any other Event of Default as
may be specified in the Prospectus Supplement with respect to the Offered Debt
Securities. If an Event of Default with respect to any outstanding series of
Debt Securities occurs and is continuing, either the Trustee or the holders of
at least 25% in principal amount of the outstanding Debt Securities of such
series (in the case of an Event of Default described in clause (a), (b), (c) or
(f) above) or at least 25% in principal amount of all outstanding Debt
Securities under the applicable Indenture (in the case of other Events of
Default) may declare the principal amount and all accrued but unpaid interest of
all the Debt Securities of the applicable series (or of all outstanding Debt
Securities under the applicable Indenture, as the case may be) to be due and
payable immediately. At any time after a declaration of acceleration with
respect to Debt Securities of any series (or of all outstanding Debt Securities
under the applicable Indenture, as the case may be) has been made, but before a
judgment or decree for payment of money has been obtained, the holders of a
majority in principal amount of the outstanding Debt Securities of such series
(or of all outstanding Debt Securities under the applicable Indenture, as the
case may be) may, under certain circumstances, rescind and annul such
acceleration. Depending on the terms of other indebtedness of the Company
outstanding from time to time, an Event of Default under an Indenture may give
rise to cross defaults on such other indebtedness of the Company.
Each Indenture provides that the Trustee will, within 90 days after the
occurrence of a default in respect of any series of Debt Securities, give to the
holders of the Debt Securities of such series notice of all uncured and unwaived
defaults known to it; provided, however, that except in the case of a default in
the payment of the principal of, or premium, if any, or interest, if any, on, or
any sinking fund installment with respect to, any Debt Securities of such
series, the Trustee will be protected in withholding such notice if it in good
faith determines that the withholding of such notice is in the best interest of
the holders of the Debt Securities of such series. For the purpose of this
provision, "default" with respect to Debt Securities of any series means any
event which is, or after notice or lapse of time or both would become, an Event
of Default with respect to the Debt Securities of such series.
The holders of a majority in principal amount of the outstanding Debt
Securities of any series (or, in certain cases, all outstanding Debt Securities
under the applicable Indenture) have the right, subject to certain limitations,
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 Debt Securities of such
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series (or of all outstanding Debt Securities under the applicable Indenture).
Each Indenture provides that in case an Event of Default shall occur and be
continuing, the Trustee shall exercise such of its rights and powers under the
applicable Indenture and use the same degree of care and skill in its exercise
as a prudent person would exercise or use under the circumstances in the conduct
of his own affairs. Subject to such provisions, the Trustee will be under no
obligation to exercise any of its rights or powers under either Indenture at the
request of any of the holders of the Debt Securities unless they 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.
The holders of a majority in principal amount of the outstanding Debt
Securities of any series (or, in certain cases, all outstanding Debt Securities
under the applicable Indenture) may, on behalf of the holders of all Debt
Securities of such series (or of all outstanding Debt Securities under the
applicable Indenture), waive any past default under the applicable Indenture,
except a default in the payment of the principal of, or premium, if any, or
interest, if any, on, any Debt Security of such series (or of all outstanding
Debt Securities under the applicable Indenture) 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 affected. The holders of
a majority in principal amount of the outstanding Debt Securities affected
thereby may, on behalf of the holders of all such Debt Securities, waive
compliance by the Company with certain restrictive provisions of the Indentures.
The Company is required to furnish to the Trustee annually a statement as
to the performance by the Company of certain of its obligations under each
Indenture and as to any default in such performance.
Modification of Indentures. The Company and the Trustee may, with the
consent of the holders of a majority in principal amount of all series of
outstanding Debt Securities under the Indenture affected thereby, enter into
supplemental indentures for the purpose of amending or modifying, in any manner,
provisions of such Indenture or any supplemental indenture modifying the rights
of holders of such series of Debt Securities; provided, however, that no such
supplemental indenture, without the consent of the holder of each outstanding
Debt Security affected thereby, shall, among other things, (a) change the stated
maturity date of the principal of, or any installment of interest on, any Debt
Security, (b) reduce the principal amount of, or the premium, if any, or
interest, if any, on, any Debt Security, (c) change the place or currency or
currencies or currency unit or units of payments of principal of, or premium, if
any, or interest, if any, on, any Debt Security, (d) impair the right to
institute suit for the enforcement of any payment on or with respect to any Debt
Security, or (e) reduce the percentage in principal amount of outstanding Debt
Securities the consent of whose holders is required for execution of any such
supplemental indenture or for waiver of compliance with certain provisions of
such Indenture or for waiver of certain defaults.
Each Indenture provides that the Company and the Trustee may, without the
consent of any holders of Debt Securities, enter into supplemental indentures
for the purposes, among other things, of(a) adding to the Company's covenants,
(b) adding additional Events of Default, (c) establishing the form or terms of
Debt Securities or (d) curing ambiguities or inconsistencies in the applicable
Indenture, any supplemental indenture or in the Debt Securities of any series,
provided such action to cure ambiguities or inconsistencies shall not adversely
affect the interests of the holders of the Debt Securities in any material
respect.
Consolidation, Merger and Sale of Assets. The Company may not consolidate
with or merge into, or convey, transfer or lease its assets substantially as an
entirety to, any person, unless (a) the person formed by such consolidation or
into which the Company is merged or which acquires or leases the assets of the
Company substantially as an entirety is a corporation, partnership, limited
liability company or trust organized under the laws of any United States
jurisdiction, (b) the person formed by such consolidation or into which the
Company is merged or which acquires or leases the assets of the Company
substantially as an entirety assumes by supplemental indenture the Company's
obligations in respect of the Debt Securities and under the Indentures, (c)
after giving effect to the 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 occurred and be continuing, and (d) certain other conditions are met. Upon
compliance with these provisions by a successor person, the
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Company will (except in the case of a lease) be relieved of its obligations
under the Indentures and the Debt Securities.
Other Covenants. The Prospectus Supplement relating to the Offered Debt
Securities will describe other specific affirmative and negative covenants from
which the Offered Debt Securities will benefit. The Company may covenant, among
other things, to deliver to holders of the Offered Debt Securities reports filed
by the Company pursuant to the Exchange Act and to execute additional
instruments necessary to fulfill its obligations under the Indenture and the
Offered Debt Securities. Each Indenture or indenture supplemental thereto may
also impose restrictions on indebtedness, guarantees, issuance of preferred
stock, liens, investments, acquisitions, dividend payments and/or transactions
with affiliates. Unless otherwise indicated in a Prospectus Supplement, the Debt
Securities will not benefit from any covenant or other provision that would
afford holders of such Debt Securities special protection in the event of a
highly leveraged transaction or change of control involving the Company.
Discharge and Defeasance. The Company may satisfy and discharge its
obligations under each Indenture, other than its obligation to pay the principal
of, and premium, if any, and interest, if any, on, the Debt Securities of any
series and certain other obligations, if it (i) irrevocably deposits or causes
to be irrevocably deposited with the Trustee as trust funds an amount, in money
or U.S. government obligations maturing as to principal and interest, sufficient
to pay the principal of, and premium, if any, and interest, if any, on, and any
mandatory sinking funds in respect of, all outstanding Debt Securities of such
series on the stated maturity date of such payments or on any redemption date
and (ii) complies with any additional conditions specified to be applicable with
respect to the covenant defeasance of Debt Securities of such series.
The terms of any series of Debt Securities may also provide for legal
defeasance pursuant to each Indenture. In such case, if the Company (i)
irrevocably deposits or causes to be irrevocably deposited money or U.S.
government obligations as described above, (ii) makes a request to the Trustee
to be discharged from its obligations on the Debt Securities of such series and
(iii) complies with any additional conditions specified to be applicable with
respect to legal defeasance of Debt Securities of such series, then the Company
shall be deemed to have paid and discharged the entire indebtedness on all the
outstanding Debt Securities of such series, and the obligations of the Company
under the applicable Indenture and the Debt Securities of such series to pay the
principal of, and premium, if any, and interest, if any, on, the Debt Securities
of such series shall cease, terminate and be completely discharged, and the
holders thereof shall thereafter be entitled only to payment out of the money or
U.S. government obligations so deposited with the Trustee, unless the Company's
obligations are revived and reinstated because the Trustee is unable to apply
such trust fund by reason of any legal proceeding, order or judgment.
Form, Exchange, Registration and Transfer. Each Debt Security will be
represented by either a global security (a "Global Debt Security") registered in
the name of The Depository Trust Company (the "Depositary") or a nominee of the
Depositary (each such Debt Security represented by a Global Debt Security being
herein referred to as a "Book-Entry Debt Security") or a certificate issued in
definitive registered form (a "Certificated Debt Security"), as set forth in the
applicable Prospectus Supplement. Except as set forth below, Book-Entry Debt
Securities will not be issuable in certificated form.
Certificated Debt Securities may be transferred or exchanged at the
Trustee's office or paying agencies in accordance with the terms of the
Indenture. No service charge will be made to any holder for any transfer or
exchange of Certificated Debt Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith. Certificated Debt Securities will not be exchangeable for
Book-Entry Debt Securities.
The transfer of Certificated Debt Securities and the right to the principal
of, and premium, if any, and interest, if any, on, such Certificated Debt
Securities may be effected only by surrender of the old certificate representing
such Certificated Debt Securities and either reissuance by the Company or the
Trustee of the old certificate to the new holder or the issuance by the Company
or the Trustee of a new certificate to the new holder.
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Each Global Debt Security representing Book-Entry Debt Securities will be
deposited with, or on behalf of, the Depositary and registered in the name of
the Depositary or a nominee of the Depositary. Except as set forth below,
Book-Entry Debt Securities will not be exchangeable for Certificated Debt
Securities and will not otherwise be issuable as Certificated Debt Securities.
Ownership of beneficial interests in Book-Entry Debt Securities will be
limited to persons that have accounts with the Depositary for the related Global
Debt Security ("Participants") or persons that may hold interests through
Participants. Upon deposit of a Global Debt Security, the Depositary will
credit, on its book-entry registration and transfer system, the Participants'
accounts with the respective principal amounts of the Book-Entry Debt Securities
represented by such Global Debt Security beneficially owned by such
Participants. The accounts to be credited shall be designated by any dealers,
underwriters or agents participating in the distribution of such Book-Entry Debt
Securities. Ownership of Book-Entry Debt Securities will be shown on, and the
transfer of such ownership interests will be effected only through, records
maintained by the Depositary for the related Global Debt Security (with respect
to interests of Participants) and on the records of Participants (with respect
to interests of persons holding through Participants). The laws of some states
may require that certain purchasers of securities take physical delivery of such
securities in definitive form. Such limits and such laws may impair the ability
to own, transfer or pledge beneficial interests in Book-Entry Debt Securities.
So long as the Depositary for a Global Debt Security, or its nominee, is
the registered owner of such Global Debt Security, the Depositary or such
nominee, as the case may be, will be considered the sole owner or holder of the
Book-Entry Debt Securities represented by such Global Debt Security for all
purposes under the Indenture. Except as set forth below, owners of beneficial
interests in Book-Entry Debt Securities will not be entitled to have such
securities registered in their names, will not receive or be entitled to receive
physical delivery of a certificate in definitive form representing such
securities and will not be considered the owners or holders thereof under the
Indenture for any purpose, including with respect to the giving of any
directions, approvals or instructions to the Trustee thereunder. As a result,
the ability of a person having a beneficial interest in Book-Entry Securities
represented by a Global Debt Security to pledge such interest to persons or
entities that do not participate in the Depositary's system, or to otherwise
take actions with respect to such interest, may be affected by the lack of a
physical certificate evidencing such interest. Accordingly, each person owning
Book-Entry Debt Securities must rely on the procedures of the Depositary for the
related Global Debt Security 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 Indenture.
The Company understands that, under existing industry practice, if the
Company requests any action of holders, or an owner of a beneficial interest in
a Global Debt Security desires to give any notice or take any action a holder is
entitled to give or take under the Indenture, the Depositary will authorize the
Participants on whose behalf it holds a Global Debt Security to give such notice
or take such action, and Participants will authorize beneficial owners owning
through such Participant to give such notice or take such action or will
otherwise act upon the instructions of beneficial owners owning through them.
The Indentures provide that the Company, the Trustee and their respective agents
will treat as the holder of a Debt Security the persons specified in a written
statement of the Depositary with respect to such Global Debt Security for
purposes of obtaining any consents or directions required to be given by holders
of the Debt Securities pursuant to the Indentures.
Payments of principal of, and premium, if any, and interest, if any, on,
Book-Entry Debt Securities will be made by the Trustee to the Depositary or its
nominee, as the case may be, as the registered holder of the related Global Debt
Security. Under the terms of the Indentures, the Company and the Trustee may
treat the persons in whose names the Offered Debt Securities, including the
Global Debt Security, are registered as the owners thereof for the purpose of
receiving such payments and for any and all other purposes whatsoever.
Consequently, none of the Company, the Trustee or any other agent of the Company
or any agent of the Trustee will have any responsibility or liability for any
aspect of the records relating to, or payments made on account of beneficial
ownership interest in, such Global Debt Security or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
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The Company expects that the Depositary, upon receipt of any payment of
principal of, or premium, if any, or interest, if any, on, a Global Debt
Security, will immediately credit Participants' accounts with payments in
amounts proportionate to the respective amounts of Book-Entry Debt Securities
held by each such Participant as shown on the records of such Depositary. The
Company also expects that payments by Participants to owners of beneficial
interests in Book-Entry Debt Securities held through such Participants will be
governed by standing customer instructions and customary practices, as is now
the case with the securities held for the accounts of customers in bearer form
or registered in "street name," and will be the responsibility of the
Participants.
If (i) the Depositary is at any time unwilling or unable to continue as
Depositary or ceases to be a clearing agency registered under the Exchange Act,
and a successor depositary registered as a clearing agency under the Exchange
Act is not appointed by the Company within 90 days, (ii) the Company, at its
option, notifies the Trustee that it elects to cause the issuance of
Certificated Debt Securities under an Indenture or (iii) there shall be an Event
of Default with respect to the Debt Securities represented by the Global Debt
Security, then, upon surrender by the Depositary of the Global Debt Security,
Certificated Debt Securities will be issued to each person that the Depositary
identifies as the beneficial owner of the Book-Entry Debt Securities represented
by the Global Debt Security.
Neither the Company nor the Trustee shall be liable for any delay by the
Depositary or any Participant or any person that may hold interests through a
Participant in identifying the beneficial owners of the Book-Entry Debt
Securities, and the Company and the Trustee may conclusively rely on, and shall
be protected in relying on, instructions from the Depositary for all purposes
(including with respect to the registration and delivery, and the respective
principal amounts, of the Book-Entry Debt Securities to be issued).
The foregoing information in this section concerning the Depositary and the
Depositary's book-entry system has been obtained from sources that the Company
believes to be reliable. The Company takes no responsibility for the accuracy of
such information or the performance by the Depositary or its Participants of
their respective obligations as described hereunder or under the rules and
procedures governing their respective operations.
Each Indenture requires that payments in respect to the Book-Entry Debt
Securities represented by a Global Debt Security (including principal, premium,
if any, and interest, if any) be made by wire transfer of immediately available
funds to the accounts specified by the Depositary. With respect to Offered Debt
Securities represented by Certificated Debt Securities, the Company will make
all payments of principal, premium, if any, and interest, if any, by mailing a
check to each such holder's registered address.
Meetings. The Indentures contain provisions for convening meetings of the
holders of Debt Securities of a series. A meeting may be called at any time by
the Trustee and also, upon request, by the Company or the holders of at least
10% in principal amount of the outstanding Debt Securities of any series, in any
such case upon proper notice. Except for any consent that must be given by the
holder of each of the outstanding Debt Securities affected thereby, as described
under "Modification of Indentures" above, any resolution presented at a meeting
or adjourned meeting at which a quorum is present may be adopted by the
affirmative vote of the holders of a majority in principal amount of the
outstanding Debt Securities of that series; provided, however, that except for
any consent that must be given by the holder of each outstanding Debt Security
affected thereby, as described under "Modification of Indentures" above, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that may be made, given or taken by the
holders of a specified percentage which is less than a majority in principal
amount of the outstanding Debt Securities of a series may be adopted at a
meeting or adjourned meeting duly reconvened at which a quorum is present by the
affirmative vote of the holders of such specified percentage in principal amount
of the outstanding Debt Securities of that series. Subject to the proviso set
forth above, any resolution passed or decision taken at any meeting of holders
of Debt Securities of any series duly held in accordance with the Indenture will
be binding on all holders of Debt Securities of that series. The quorum at any
meeting called to adopt a resolution, and at any reconvened meeting, will be
persons holding or representing a majority in principal amount of the
outstanding Debt Securities of a series.
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The Trustee. Each Indenture contains certain limitations on the right of
the Trustee, as a creditor of the Company, to obtain payment of claims in
certain cases and to realize on certain property received with respect to any
such claims, as security or otherwise. The Trustee is permitted to engage in
other transactions, except that, if it acquires any conflicting interest (as
defined), it must eliminate such conflict or resign. The Trustee may also be a
trustee under other indentures of the Company under which outstanding senior or
subordinated debt securities of the Company have been issued.
PROVISIONS APPLICABLE SOLELY TO SENIOR DEBT SECURITIES
Senior Debt Securities will be issued under the Senior Indenture and will
rank pari passu with all other unsubordinated debt of the Company.
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
General. Subordinated Debt Securities will be issued under the Subordinated
Indenture and will rank pari passu with certain other subordinated debt of the
Company that may be outstanding from time to time and junior to all Senior
Indebtedness (as defined below) of the Company (including any Senior Debt
Securities) that may be outstanding from time to time.
Subordination. The payment of the principal of, and premium, if any, and
interest, if any, on, the Subordinated Debt Securities is expressly
subordinated, to the extent and in the manner set forth in the Subordinated
Indenture, in right of payment to the prior payment in full of all Senior
Indebtedness of the Company.
In the event of any dissolution or winding up or total or partial
liquidation or reorganization of the Company, whether in bankruptcy,
reorganization, insolvency, receivership or similar proceeding, the holders of
Senior Indebtedness will be entitled to receive payment in full of all amounts
due or to become due on or in respect of all Senior Indebtedness before the
holders of the Subordinated Debt Securities are entitled to receive any payment
on account of principal of, or premium, if any, or interest, if any, on, the
Subordinated Debt Securities.
Unless otherwise indicated in the applicable Prospectus Supplement, no
payment in respect of the Subordinated Debt Securities shall be made if, at the
time of such payment, there exists a default in payment of all or any portion of
any Senior Indebtedness and such default shall not have been cured or waived in
writing or the benefits of such subordination in the Subordinated Indenture
shall not have been waived in writing by or on behalf of the holders of such
Senior Indebtedness. In addition, during the continuation of any event of
default (other than a default referred to in the immediately preceding sentence)
with respect to any Senior Indebtedness permitting the holders to accelerate the
maturity thereof and upon written notice thereof given to the Trustee, with a
copy to the Company (the delivery of which shall not affect the validity of the
notice to the Trustee), by any holder of Senior Indebtedness or its
representative, then, unless and until such Event of Default shall have been
cured or waived or shall have ceased to exist, no payment shall be made by the
Company with respect to the principal of, or interest on, the Subordinated Debt
Securities or to acquire any of the Subordinated Debt Securities or on account
of the redemption provisions for the Subordinated Debt Securities; provided,
however, that if the holders of the Senior Indebtedness to which the default
relates have not declared such Senior Indebtedness to be immediately due and
payable within 180 days after the occurrence of such default (or shall have
declared such Senior Indebtedness to be immediately due and payable and within
such period have rescinded such declaration of acceleration), then the Company
shall resume making any and all required payments in respect of the Subordinated
Debt Securities (including any missed payments). Only one such payment blockage
period may be commenced within any consecutive 365-day period with respect to
the Subordinated Debt Securities. No event of default which existed or was
continuing on the date of the commencement of any 180-day payment blockage
period with respect to the Senior Indebtedness initiating such payment blockage
period shall be, or be made, the basis for the commencement of a second payment
blockage period by a holder or representative of such Senior Indebtedness,
whether or not within a period of 365 consecutive days, unless such event of
default shall have been cured or waived for a period of not less than 90
consecutive days.
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The term "Senior Indebtedness" is defined in the Subordinated Indenture as
Indebtedness, either outstanding as of the date of the Subordinated Indenture or
issued subsequent to the date of the Subordinated Indenture, which is not
subordinated by its terms in right of payment to any other Indebtedness of the
Company or otherwise is senior in right of payment to the Subordinated Debt
Securities, provided that the term "Senior Indebtedness" shall not include (i)
Indebtedness of the Company to any Subsidiary for money borrowed or advanced
from such Subsidiary or (ii) amounts owed (except to banks and other financial
institutions) for goods, materials or services purchased in the ordinary course
of business.
The term "Indebtedness," as applied to any person, is defined in the
Subordinated Indenture as all indebtedness, whether or not represented by bonds,
debentures, notes or other securities, created or assumed by such person for the
repayment of money borrowed, and obligations, computed in accordance with
generally accepted accounting principles, as lessee under leases that should, in
accordance with generally accepted accounting principles, be treated as capital
leases. All Indebtedness secured by a lien upon property owned by the Company or
any Subsidiary and upon which Indebtedness such person customarily pays
interest, although such person has not assumed or become liable for the payment
of such Indebtedness, shall be deemed to be Indebtedness of such person. All
Indebtedness of others guaranteed as to payment of principal by such person or
in effect guaranteed by such person through a contingent agreement to purchase
such Indebtedness shall also be deemed to be Indebtedness of such person.
Indebtedness (i) shall not include accounts payable to trade creditors or other
indebtedness for goods or services created or assumed in the ordinary course of
business and (ii) shall include only the principal component of any obligation
described in this definition.
If Subordinated Debt Securities are issued under the Subordinated
Indenture, the aggregate principal amount of Senior Indebtedness outstanding as
of a recent date will be set forth in the applicable Prospectus Supplement. The
applicable Prospectus Supplement will also set forth any limitation on the
issuance by the Company of any additional Senior Indebtedness.
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DESCRIPTION OF CAPITAL STOCK
GENERAL
The following description of the capital stock of the Company is qualified
in its entirety by reference to the Company's Restated Certificate of
Incorporation, as amended (the "Restated Certificate"), which has been filed
with, and is available from the offices of, the Commission as referred to under
"Available Information."
The Restated Certificate authorizes the issuance of 265,000,000 shares of
capital stock, of which 35,000,000 shares are designated preferred stock, par
value $.01 per share ("Preferred Stock"), 200,000,000 shares are designated
Class A Common Stock, par value $.01 per share ("Class A Common Stock") and
30,000,000 shares are designated Class B Common Stock, $.01 par value per share
("Class B Common Stock" and, collectively with Class A Common Stock, "Common
Stock"). As of March 31, 1997, 69,534,469 shares of Class A Common Stock and
6,690,976 shares of Class B Common Stock were issued and outstanding. As of
March 31, 1997, there were 1,500,000 shares of Series A Junior Participating
Preferred Stock authorized, none of which were issued and outstanding, nor were
any shares of any other class or series of Preferred Stock issued and
outstanding. All outstanding shares of Common Stock are fully paid and
nonassessable. Class A Common Stock and Preferred Stock offered hereby will,
upon full payment of the purchase price therefor, likewise be fully paid and
nonassessable.
PREFERRED STOCK
Under the Restated Certificate, the Board of Directors of the Company may
provide for the issuance of Preferred Stock from time to time in one or more
series, and the rights, preferences, privileges and restrictions, including
dividend rights, voting rights, conversion rights, terms of redemption and
liquidation preferences, of the Preferred Stock of each series will be fixed or
designated by the Board of Directors pursuant to a certificate of designation,
preferences and rights without any further vote or action by the Company's
stockholders.
The description of Preferred Stock set forth below and the description of
the terms of a particular series of Preferred Stock that will be set forth in a
Prospectus Supplement do not purport to be complete and are qualified in their
entirety by reference to the Restated Certificate and the certificate of
designation, preferences and rights relating to such series. The specific terms
of a particular series of Preferred Stock offered hereby will be described in a
Prospectus Supplement relating to such series and will include the following:
(i) the maximum number of shares to constitute the series and the
distinctive designation thereof;
(ii) the annual dividend rate, if any, on shares of the series,
whether such rate is fixed or variable or both, the date or dates from
which dividends will begin to accrue or accumulate and whether dividends
will be cumulative;
(iii) whether the shares of the series will be redeemable and, if so,
the price at, and the terms and conditions on which, the shares of the
series may be redeemed, including the time during which shares of the
series may be redeemed and any accumulated dividends thereon that the
holders of shares of the series shall be entitled to receive upon the
redemption thereof;
(iv) the liquidation preference, if any, applicable to shares of the
series;
(v) whether the shares of the series will be subject to operation of a
retirement or sinking fund and, if so, the extent and manner in which any
such fund shall be applied to the purchase or redemption of the shares of
the series for retirement or for other corporate purposes, and the terms
and provisions relating to the operation of such fund;
(vi) the terms and conditions, if any, on which the shares of the
series shall be convertible into, or exchangeable for, shares of any other
class or classes of capital stock of the Company or another corporation or
any series of any other class or classes, or of any other series of the
same class, including
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the price or prices or the rate or rates of conversion or exchange and the
method, if any, of adjusting the same;
(vii) the voting rights, if any, of the shares of the series; and
(viii) any other preferences and relative, participating, optional or
other special rights or qualifications, limitations or restrictions
thereof.
DESCRIPTION OF PREFERRED STOCK PURCHASE RIGHTS
In February 1996 the Board of Directors of the Company adopted a
stockholder rights plan (the "Rights Plan") by which preferred stock purchase
rights (the "Series A Rights") were distributed for each outstanding share of
Common Stock. The record date for distribution of such Series A Rights was March
22, 1996 and, for so long as the Series A Rights are associated with the Common
Stock, each new share of Common Stock issued by the Company (including any
shares of Class A Common Stock which may be offered pursuant to this
Registration Statement) will include one Series A Right.
Each Series A Right entitles holders of the Common Stock to purchase one
one-hundredth of a share of Series A Junior Participating Preferred Stock of the
Company at an exercise price of $90, subject to adjustment. The Series A Rights
are not exercisable until the earlier of (i) ten days after the first public
announcement that a person or group has acquired beneficial ownership of 15% or
more of the outstanding Common Stock (an "Acquiring Person") or (ii) ten days
(unless extended by the Company's Board of Directors) after the commencement of,
or announcement of intention to make, a tender offer or exchange offer that
would result in a person or group beneficially owning 15% or more of the
outstanding Common Stock.
If any person or group becomes an Acquiring Person, each holder of a Series
A Right (except the acquiring party) will have the right to receive, upon
exercise, (i) shares of Class A Common Stock having a value of two times the
exercise price of the Series A Right and (ii) one Series B Right (with the
Series A Rights, the "Rights"). The Company's Board of Directors has the option,
after a person or group becomes an Acquiring Person but before there has been an
acquisition of 50% or more of the outstanding Common Stock, to exchange each
Series A Right (other than Series A Rights held by an acquiring party) for both
(i) one share of Class A Common Stock (or of a share of preferred stock having
equivalent rights, preferences and privileges) and (ii) one Series B Right. If,
after the first date of public announcement that a person or group has become an
Acquiring Person (the "Shares Acquisition Date"), the Company is involved in a
merger or other business combination, or if the Company sells or transfers more
than 50% of its consolidated assets or earning power, each Series A Right and
Series B Right then outstanding (other than Rights held by an acquiring party)
will be exercisable for common stock of the other party to such transaction
having a market value of two times the exercise price of the Right. The Company
has the right to redeem the Series A Rights for $.01 per Series A Right (the
"Redemption Price") prior to the Shares Acquisition Date. Under certain
circumstances, the decision to redeem the Series A Rights will require the
concurrence of a majority of the directors (other than an acquiring party) who
(i) were directors prior to the date of the Rights Plan or (ii) are recommended
or approved by a majority of such directors. The Series B Rights, once issued,
are not redeemable. The Rights expire on March 21, 2006, unless such date is
extended or the Rights are redeemed earlier.
The Rights have certain anti-takeover effects. The Rights should not
interfere with any merger or business combination approved by the Board of
Directors because the Series A Rights may be redeemed by the Company at the
Redemption Price prior to the time that a person or group has become an
Acquiring Person. However, by causing substantial dilution to a person or group
that attempts to acquire the Company on terms not approved by the Company's
Board of Directors, the Rights may interfere with certain acquisitions,
including acquisitions that may offer a premium over market price to some or all
of the Company's stockholders. The Rights are not intended to prevent an
acquisition of the Company on terms that are favorable and fair to all
stockholders. The foregoing description of the Rights Plan does not purport to
be complete and is qualified in its entirety by reference to the Rights Plan.
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COMMON STOCK
Voting. The holders of Class A Common Stock are entitled to one vote per
share. The holders of Class B Common Stock are entitled to five votes per share.
All actions submitted to a vote of stockholders are voted on by the holders of
Class A and Class B Common Stock, voting together as a single class, except as
otherwise set forth below or as provided by law. With respect to the election of
directors, holders of Class A Common Stock, voting as a separate class, are
entitled to elect 25% of the total number of directors constituting the entire
Board of Directors of the Company (the "Class A Directors") and, if not a whole
number, then the holders of the Class A Common Stock are entitled to elect the
nearest higher whole number of directors that is a least 25% of the total number
of directors, so long as the number of outstanding shares of Class A Common
Stock is at least 10% of the total number of outstanding shares of both classes
of Common Stock. The holders of the Class A Common Stock and the holders of the
Class B Common Stock, voting together as a single class, are entitled to elect
the remaining directors. The holders of the Class B Common Stock vote separately
as a class on the issuance of additional shares of Class B Common Stock and on
any amendment to the Restated Certificate which would adversely affect such
holders.
If, however, on the record date for any stockholders meeting at which
directors are to be elected, the number of outstanding shares of Class A Common
Stock is less than 10% of the total number of outstanding shares of both classes
of Common Stock, then the holders of the Class A Common Stock would not have the
right to elect 25% of the number of the directors, but would have one vote per
share for all directors and the holders of the Class B Common Stock would have
five votes per share for all directors.
If, on the record date for any stockholders meeting at which directors are
to be elected, the number of outstanding shares of Class B Common Stock is equal
to or greater than 12.5% of the total number of outstanding shares of both
classes of Common Stock, then the holders of Class A Common Stock, voting as a
separate class, would continue to elect a number of Class A Directors equal to
25% of the total number of directors constituting the entire Board of Directors
of the Company, and the holders of Class B Common Stock, voting as a separate
class, would be entitled to elect the remaining directors to be elected at such
meeting.
Conversion. Class A Common Stock has no conversion rights. Class B Common
Stock is convertible into Class A Common Stock, in whole or in part, at any time
and from time to time on the basis of one share of Class A Common Stock for each
share of Class B Common Stock. If at any time any shares of Class B Common Stock
are beneficially owned by any person other than William Farley, Chairman of the
Board, Chief Executive Officer and a director of the Company, or any entity
controlled by Mr. Farley, such shares automatically convert into an equal number
of shares of Class A Common Stock.
Dividends. Holders of Class A Common Stock are entitled to receive, on a
cumulative basis, the first dollar per share of cash dividends if and when
declared by the Company's Board of Directors from funds legally available
therefor. Thereafter, holders of Class A Common Stock and Class B Common Stock
are entitled to receive cash dividends equally on a per share basis if and when
such dividends are declared by the Board of Directors of the Company from funds
legally available therefor. In the case of any dividend paid in stock, holders
of Class A Common Stock are entitled to receive the same percentage dividend
(payable in shares of Class A Common Stock) as the holders of Class B Common
Stock receive (payable in shares of Class B Common Stock).
Liquidation. Holders of Class A Common Stock and Class B Common Stock share
with each other on a ratable basis as a single class in the net assets of the
Company available for distribution in respect of Common Stock in the event of
liquidation.
Other Terms. Neither the Class A Common Stock nor the Class B Common Stock
may be subdivided, consolidated, reclassified or otherwise changed unless
contemporaneously therewith the other class of shares is subdivided,
consolidated, reclassified or otherwise changed in the same proportion and in
the same manner.
In any merger, consolidation or business combination, the consideration to
be received per share by holders of either Class A Common Stock or Class B
Common Stock must be identical to that received by holders of the other class of
Common Stock, except that in any such transaction in which shares of capital
15
<PAGE> 17
stock are distributed, the dividend preference of the Class A Common Stock must
be retained and such shares may differ as to voting rights only to the extent
that voting rights now differ between Class A Common Stock and Class B Common
Stock.
Anti-Takeover Provisions. In addition to the Rights Plan, the Company's
corporate documents include certain provisions which may be deemed to have a
potential "anti-takeover" effect in that such provisions may delay, defer or
prevent a change of control of the Company. The Company's Restated Certificate
and Bylaws contain provisions that include (i) the authority of the Company's
Board of Directors to issue series of Preferred Stock with such voting rights
and other powers as the Company's Board of Directors may determine; and (ii)
notice requirements in the Bylaws relating to nominations to the Company's Board
of Directors and to the raising of business matters at stockholders meetings.
Delaware General Corporation Law. The Company is subject to the provisions
of Section 203 of the Delaware General Corporation Law ("Section 203"). Pursuant
to Section 203, with certain exceptions, a Delaware corporation may not engage
in any of a broad range of business combinations, such as mergers,
consolidations and sales of assets, with an "interested stockholder" for a
period of three years from the date that such person became an interested
stockholder unless (i) the transaction that results in the person becoming an
interested stockholder, or the business combination, is approved by the board of
directors of the corporation before the person becomes an interested
stockholder, (ii) upon consummation of the transaction which results in the
stockholder becoming an interested stockholder, the interested stockholder owns
85% or more of the voting stock of the corporation outstanding at the time the
transaction commenced (other than certain excluded shares), or (iii) on or after
the date the person becomes an interested stockholder, the business combination
is approved by the corporation's board of directors and by holders of at least
two-thirds of the corporation's outstanding voting stock, excluding shares owned
by the interested stockholder, at a meeting of stockholders. Under Section 203,
an "interested stockholder" is defined as any person, other than the corporation
and any direct or indirect majority-owned subsidiaries of the corporation, that
is (x) the owner of 15% or more of the outstanding voting stock of the
corporation or (y) an affiliate or associate of the corporation and was the
owner of 15% or more of the outstanding voting stock of the corporation at any
time within the three-year period immediately prior to the date on which it is
sought to be determined whether such person is an interested stockholder.
Under certain circumstances, Section 203 makes it more difficult for a
person who would be an "interested stockholder" to effect various business
combinations with a corporation for a three-year period. The provisions of
Section 203 may encourage persons interested in acquiring the Company to
negotiate in advance with the Company's Board of Directors because the
stockholder approval requirement would be avoided if directors then in office
approve either the business combination or the transaction which results in the
person becoming an interested stockholder. Such provisions also may have the
effect of preventing changes in management of the Company. It is possible that
such provisions could make it more difficult to accomplish transactions that
stockholders may otherwise deem to be in their best interests.
Transfer Agent. The Company's Transfer Agent and Registrar for the Class A
Common Stock is ChaseMellon Shareholder Services, L.L.C.
PLAN OF DISTRIBUTION
The Company may offer the Securities directly to purchasers, to or through
underwriters, through dealers or agents or through a combination of any such
methods. Any such underwriter(s), dealer(s) or agent(s) involved in the offer
and sale of the Securities in respect of which this Prospectus is delivered will
be named in a Prospectus Supplement. The Prospectus Supplement with respect to
such Securities also will set forth the terms of the offering of such
Securities, including the purchase price of such Securities and the proceeds to
the Company from such sale, any underwriting discounts and other items
constituting underwriters' compensation, any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers and any
securities exchanges or markets on which such Securities may be listed.
16
<PAGE> 18
If underwriters are used in an offering of Securities, the Company will
execute an underwriting agreement with such underwriters, and the name of each
underwriter and the terms of the transaction, including any underwriting
discounts and other items constituting compensation of the underwriters and
dealers, if any, will be set forth in the Prospectus Supplement relating to such
offering, and, if an underwriting syndicate is used, the managing underwriter or
underwriters will be set forth on the cover of such Prospectus Supplement. Such
Securities will be acquired by the underwriters for their own accounts and may
be resold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be changed from time to
time.
If a dealer is used in an offering of Securities, the Company will sell
such Securities to the dealer, as principal. The dealer then may resell such
Securities to the public at varying prices to be determined by such dealer at
the time of resale. The name of the dealer and the terms of the transaction will
be set forth in the Prospectus Supplement relating thereto.
If an agent is used in an offering of Securities, the agent will be named,
and the terms of the agency will be set forth, in the Prospectus Supplement
relating thereto. Unless otherwise indicated in such Prospectus Supplement, an
agent will act on a best efforts basis for the period of its appointment.
Dealers and agents named in a Prospectus Supplement may be deemed to be
underwriters (within the meaning of the Securities Act) of the Securities
described therein. Underwriters, dealers and agents, under underwriting
agreements and other agreements which may be entered into with the Company, may
be entitled to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act.
Offers to purchase Securities may be solicited, and sales thereof may be
made, by the Company directly to institutional investors or others, who may be
deemed to be underwriters within the meaning of the Securities Act with respect
to any resales thereof. The terms of any such offer will be set forth in the
Prospectus Supplement relating thereto.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters, dealers or other agents of the Company to solicit offers by
certain institutional investors to purchase Securities from the Company pursuant
to contracts providing for payment and delivery at a future date. Institutional
investors 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 in all cases such purchasers must be
approved by the Company. The obligations of any purchaser under any such
contract will not be subject to any conditions except that (i) the purchase of
the Securities shall not at the time of delivery be prohibited under the laws of
any jurisdiction to which such purchaser is subject and (ii) if the Securities
also are being sold to underwriters, the Company shall have sold to such
underwriters the Securities not subject to delayed delivery. Underwriters and
other agents will not have any responsibility in respect of the validity or
performance of such contracts.
The anticipated date of delivery of Securities will be set forth in the
Prospectus Supplement relating to each applicable offering.
There can be no assurance that a secondary market will be created for the
Debt Securities or Preferred Stock or, if it is created, that it will continue.
Certain underwriters, dealers or agents and their associates may engage in
transactions with, and perform services for, the Company in the ordinary course
of business, including refinancing of the Company's indebtedness.
To facilitate an offering of a series of Securities, certain persons
participating in the offering may engage in transactions that stabilize,
maintain or otherwise affect the price of the Securities. This may include over-
allotments or short sales of the Securities, which involves the sale by persons
participating in the offering of more Securities than have been sold to them by
the Company. In such circumstances, such persons would cover such
over-allotments or short positions by purchasing in the open market or by
exercising the over-allotment option granted to such persons. In addition, such
persons may stabilize or maintain the price of the
17
<PAGE> 19
Securities by bidding for or purchasing Securities in the open market or by
imposing penalty bids, whereby selling concessions allowed to dealers
participating in any such offering may be reclaimed if Securities sold by them
are repurchased in connection with stabilization transactions. The effect of
these transactions may be to stabilize or maintain the market price of the
Securities at a level above that which might otherwise prevail in the open
market. Such transactions, if commenced, may be discontinued at any time.
LEGAL MATTERS
Certain legal matters with respect to the Securities offered hereby will be
passed upon for the Company by Katten Muchin & Zavis, Chicago, Illinois. Certain
legal matters will be passed upon for any agents or underwriters by counsel for
such agents or underwriters identified in the applicable Prospectus Supplement.
EXPERTS
The consolidated financial statements and schedule of the Company appearing
in the Company's Annual Report on Form 10-K for the year ended December 31, 1996
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon (which contains an explanatory paragraph with respect to an
accounting change in 1995 mentioned in the notes to consolidated financial
statements) included therein and incorporated herein by reference. Such
consolidated financial statements and schedule are incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
18
<PAGE> 20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following expenses will be paid by the Company:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee......... $257,576
Accounting Fees and Expenses................................ 50,000
Legal Fees and Expenses..................................... 100,000
Trustees' Fees and Expenses................................. 5,000
Blue Sky Fees and Expenses.................................. 5,000
Printing and Engraving Expenses............................. 50,000
Miscellaneous Expenses...................................... 32,424
--------
Total.................................................. $500,000
========
</TABLE>
All expenses other than the Securities and Exchange Commission registration
fee are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides that a
Delaware corporation may indemnify any persons who are, or are threatened to be
made, parties to any threatened, pending or completed legal action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation), by reason of the fact that
such person is or was an officer or director of such corporation, or is or was
serving at the request of such corporation as a director, officer, employee or
agent of another corporation or enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided that such officer or director acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests and, for criminal proceedings, had no reasonable
cause to believe his conduct was unlawful. A Delaware corporation may indemnify
officers and directors in an action by or in the right of the corporation under
the same conditions against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the corporation
in the performance of his duty. Where an officer or director is successful on
the merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which he actually and
reasonably incurred.
The Company's Bylaws provide for indemnification of its directors and
officers to the extent permitted by Section 145.
Articles XII and XIII of the Company's Restated Certificate of
Incorporation, as amended, provide that the Company shall indemnify certain of
its former and present directors and officers against certain liabilities and
expenses incurred as a result of their duties as such.
The Company has purchased directors' and officers' liability insurance
covering certain liabilities incurred by its officers and directors and those of
its subsidiaries and affiliates in connection with the performance of their
duties.
II-1
<PAGE> 21
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
<S> <C>
1.1* Form of Underwriting Agreement (Debt Securities).
1.2* Form of Underwriting Agreement (Preferred Stock).
1.3* Form of Underwriting Agreement (Class A Common Stock).
3.1 Restated Certificate of Incorporation and Certificate of
Amendment of the Restated Certificate of Incorporation of
the Company (incorporated herein by reference to Exhibit 3
to the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1993).
3.2 Bylaws of the Company (incorporated herein by reference to
Exhibit 4(b) to the Company's Registration Statement on Form
S-2, Reg. No. 33-8303).
4.1 Form of Indenture between the Company and the Trustee,
governing the Senior Debt Securities.
4.2 Form of Indenture between the Company and the Trustee,
governing the Subordinated Debt Securities.
4.3* Form of Senior Debt Securities.
4.4* Form of Subordinated Debt Securities.
4.5* Form of Certificate of Designation, Preferences and Rights
for Preferred Stock.
4.6 Rights Agreement, dated as of March 8, 1996 between the
Company and Chase Mellon Shareholder Services, L.L.C.,
Rights Agent (incorporated herein by reference to Exhibit
4(c) to the Company's Annual Report on Form 10-K for the
year ended December 31, 1995).
5 Opinion of Katten Muchin & Zavis as to the legality of the
Securities being registered.
12 Statement of Computation of Ratio of Earnings to Fixed
Charges and Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividends.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Katten Muchin & Zavis (contained in their opinion
filed as Exhibit 5 hereto).
24 Powers of Attorney (included on the signature page hereto).
25.1* Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of the Trustee for the Senior Debt Securities.
25.2* Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of the Trustee for the Subordinated Debt
Securities.
</TABLE>
- -------------------------
* To be filed as an exhibit to Form 8-K in reference to the specific offering of
Securities, if any, to which it relates.
ITEM 17. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
II-2
<PAGE> 22
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this Registration Statement.
(2) That, for the purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of post-effective amendment
any of the Securities being registered which remain unsold at the
termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
D. The undersigned Registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
II-3
<PAGE> 23
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 the City of Chicago, State of Illinois on the 11th day of July,
1997.
FRUIT OF THE LOOM, INC.
By: /s/ LARRY K. SWITZER
------------------------------------
Larry K. Switzer, Senior Executive
Vice President and Chief Financial
Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Larry K Switzer, Howard S. Lanznar, and Brian J. Hanigan and each of them, their
true and lawful attorneys-in-fact and agents, with full power of substitution,
to sign on his or her behalf, individually and in each capacity stated below,
all amendments and post-effective amendments to this Registration Statement on
Form S-3 (including any registration statement filed pursuant to Rule 462(b)
under the Securities Act of 1933 and all amendments thereto) and to file the
same, with all exhibits thereto and any other documents in connection therewith,
with the Securities and Exchange Commission under the Securities Act of 1933,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as each might
or could do in person, thereby ratifying and confirming each act that said
attorneys-in-fact and agents may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on July 11, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ WILLIAM FARLEY Chairman of the Board and Chief Executive Officer
- --------------------------------------------- (principal executive officer) and Director
William Farley
/s/ LARRY K. SWITZER Senior Executive Vice President and Chief Financial Officer
- --------------------------------------------- (principal financial and accounting officer) and Director
Larry K. Switzer
/s/ OMAR Z. AL ASKARI Director
- ---------------------------------------------
Omar Z. Al Askari
/s/ DENNIS S. BOOKSHESTER Director
- ---------------------------------------------
Dennis S. Bookshester
/s/ LEE W. JENNINGS Director
- ---------------------------------------------
Lee W. Jennings
/s/ HENRY A. JOHNSON Director
- ---------------------------------------------
Henry A. Johnson
/s/ RICHARD C. LAPPIN Director
- ---------------------------------------------
Richard C. Lappin
/s/ A. LORNE WEIL Director
- ---------------------------------------------
A. Lorne Weil
/s/ SIR BRIAN WOLFSON Director
- ---------------------------------------------
Sir Brian Wolfson
</TABLE>
II-4
<PAGE> 24
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
4.1 Form of Indenture between the Company and the Trustee,
governing the Senior Debt Securities.
4.2 Form of Indenture between the Company and the Trustee,
governing the Subordinated Debt Securities.
5 Opinion of Katten Muchin & Zavis as to the legality of the
Securities being registered.
12 Statement of Computation of Ratio of Earnings to Fixed
Charges and Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividends.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Katten Muchin & Zavis (contained in their opinion
filed as Exhibit 5 hereto).
24 Powers of Attorney (included on the signature page hereto).
</TABLE>
<PAGE> 1
EXHIBIT 4.1
================================================================
FRUIT OF THE LOOM, INC.
AND
____________________________________
TRUSTEE
____________
INDENTURE
DATED AS OF
____________
SENIOR DEBT SECURITIES
================================================================
<PAGE> 2
FRUIT OF THE LOOM, INC.
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939, as amended:
<TABLE>
<S> <C>
SECTION 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608, 610
SECTION 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
SECTION 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
SECTION 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101, 703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
SECTION 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
SECTION 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
SECTION 316 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105(a)
SECTION 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
</TABLE>
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<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
----------- -------
<S> <C>
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
SECTION 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
</TABLE>
- --------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
-ii-
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<S> <C>
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . -1-
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION -1-
SECTION 101. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . -1-
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . -2-
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . -2-
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . -2-
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
Company Request and Company Order . . . . . . . . . . . . . . . -2-
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . -2-
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . -2-
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
Dollar or $ . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . -3-
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
Exchange Rate . . . . . . . . . . . . . . . . . . . . . . . . . -3-
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . -3-
Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . -3-
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
Officer's Certificate . . . . . . . . . . . . . . . . . . . . . -3-
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . -4-
Original Issue Discount Security . . . . . . . . . . . . . . . . -4-
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . -4-
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . -5-
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . -5-
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . -5-
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . -5-
Registered Security . . . . . . . . . . . . . . . . . . . . . . -5-
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . -5-
Required Currency . . . . . . . . . . . . . . . . . . . . . . . -5-
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . -5-
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-
Security Register . . . . . . . . . . . . . . . . . . . . . . . -6-
</TABLE>
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<PAGE> 5
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
----------- -------
<S> <C>
Security Registrar . . . . . . . . . . . . . . . . . . . . . . . -6-
Special Record Date . . . . . . . . . . . . . . . . . . . . . . -6-
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . -6-
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . -6-
United States . . . . . . . . . . . . . . . . . . . . . . . . . -6-
U.S. Government Obligations . . . . . . . . . . . . . . . . . . -6-
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . -6-
Wholly Owned Subsidiary . . . . . . . . . . . . . . . . . . . . -6-
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . -7-
SECTION 102. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. . . . . -7-
SECTION 103. COMPLIANCE CERTIFICATES AND OPINIONS. . . . . . . . . . . . -7-
SECTION 104. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. . . . . . . . . . . -8-
SECTION 105. ACTS OF HOLDERS. . . . . . . . . . . . . . . . . . . . . . -8-
SECTION 106. NOTICES, ETC., TO TRUSTEE AND COMPANY. . . . . . . . . . . -10-
SECTION 107. NOTICE TO HOLDERS; WAIVER. . . . . . . . . . . . . . . . . -10-
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT. . . . . . . . . . . . . -11-
SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS. . . . . . . . . . -11-
SECTION 110. SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . . . -11-
SECTION 111. SEPARABILITY CLAUSE. . . . . . . . . . . . . . . . . . . . -11-
SECTION 112. BENEFITS OF INDENTURE. . . . . . . . . . . . . . . . . . . -11-
SECTION 113. GOVERNING LAWS. . . . . . . . . . . . . . . . . . . . . . . -11-
SECTION 114. LEGAL HOLIDAYS. . . . . . . . . . . . . . . . . . . . . . . -11-
SECTION 115. CORPORATE OBLIGATION. . . . . . . . . . . . . . . . . . . . -11-
ARTICLE TWO
SECURITY FORMS . . . . . . . . . . . . . . -12-
SECTION 201. FORMS GENERALLY. . . . . . . . . . . . . . . . . . . . . . -12-
</TABLE>
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<PAGE> 6
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
----------- -------
<S> <C> <C>
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. . . . . . -12-
SECTION 203. SECURITIES IN GLOBAL FORM. . . . . . . . . . . . . . . . . -12-
SECTION 204. CUSIP NUMBERS . . . . . . . . . . . . . . . . . . . . . . . -13-
ARTICLE THREE
THE SECURITIES . . . . . . . . . . . . . -14-
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. . . . . . . . . . . . -14-
SECTION 302. DENOMINATIONS. . . . . . . . . . . . . . . . . . . . . . . -16-
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. . . . . . . -17-
SECTION 304. TEMPORARY SECURITIES. . . . . . . . . . . . . . . . . . . . -18-
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. . . . -19-
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. . . . . . -21-
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. . . . . . . -22-
SECTION 308. PERSONS DEEMED OWNERS. . . . . . . . . . . . . . . . . . . -23-
SECTION 309. CANCELLATION. . . . . . . . . . . . . . . . . . . . . . . . -23-
SECTION 310. COMPUTATION OF INTEREST. . . . . . . . . . . . . . . . . . -23-
ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . . . . -23-
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. . . . . . . . . . -23-
SECTION 402. APPLICATION OF TRUST MONEY. . . . . . . . . . . . . . . . . -25-
SECTION 403. DISCHARGE OF LIABILITY ON SECURITIES OF ANY SERIES. . . . . -25-
SECTION 404. REINSTATEMENT. . . . . . . . . . . . . . . . . . . . . . . -25-
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . . . . -26-
</TABLE>
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<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
----------- -------
<S> <C> <C>
SECTION 501. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -26-
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. . . . . . . . . . . . . . . . . . -27-
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE. . . . . . . . . . . -28-
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. . . . . . . . . . . . . . . . . . . . . . . . . . . -29-
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES. . . . . . . . . . . . . -29-
SECTION 506. APPLICATION OF MONEY COLLECTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . -29-
SECTION 507. LIMITATION ON SUITS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -30-
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST. . . . . . -31-
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . -31-
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. . . . . . . . . . . . . . . . . . . . . . . . . . . . -31-
SECTION 511. DELAY OR OMISSION NOT WAIVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . -31-
SECTION 512. CONTROL BY HOLDERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -31-
SECTION 513. WAIVER OF PAST DEFAULTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -32-
SECTION 514. UNDERTAKING FOR COSTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -32-
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS. . . . . . . . . . . . . . . . . . . . . . . . . . . -32-
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . -32-
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES. . . . . . . . . . . . . . . . . . . . . . . . . -32-
SECTION 602. NOTICE OF DEFAULTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -33-
SECTION 603. CERTAIN RIGHTS OF TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -34-
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. . . . . . . . . . . . . . . . -34-
SECTION 605. MAY HOLD SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -34-
</TABLE>
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<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
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<S> <C> <C>
SECTION 606. MONEY HELD IN TRUST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -35-
SECTION 607. COMPENSATION AND REIMBURSEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . -35-
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS. . . . . . . . . . . . . . . . . . . . . -35-
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. . . . . . . . . . . . . . . . . . . . . -36-
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. . . . . . . . . . . . . . . . -36-
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. . . . . . . . . . . . . . . . . . . . . . -37-
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS . . . . . . . . . . . -38-
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY . . . . . . . . . . . . . . . . -38-
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT . . . . . . . . . . . . . . . . . . . . . . . -38-
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . . . . . . . . . . . . . . -41-
SECTION 701. COMPANY TO FURNISH TRUSTEE WITH NAMES AND ADDRESSES OF HOLDERS. . . . . . . . . . -41-
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS. . . . . . . . . . . . . . -41-
SECTION 703. REPORTS BY TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -41-
SECTION 704. REPORTS BY COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -42-
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . -42-
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. . . . . . . . . . . . . . . -42-
SECTION 802. SUCCESSOR PERSON SUBSTITUTED. . . . . . . . . . . . . . . . . . . . . . . . . . . -43-
ARTICLE NINE
SUPPLEMENTAL INDENTURES . . . . . . . . . . -43-
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. . . . . . . . . . . . . . . . -43-
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. . . . . . . . . . . . . . . . . -44-
</TABLE>
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<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
----------- -------
<S> <C> <C>
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES. . . . . . . . . . . . . . . . . . . . . . -45-
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES. . . . . . . . . . . . . . . . . . . . . . . -45-
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT. . . . . . . . . . . . . . . . . . . . . . -45-
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES. . . . . . . . . . . . . . . -45-
ARTICLE TEN
COVENANTS . . . . . . . . -45-
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. . . . . . . . . . . . . . . . . . -45-
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . . . . . . . . . . . . -45-
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST. . . . . . . . . . . . . . . -46-
SECTION 1004. EXISTENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -47-
SECTION 1005. MAINTENANCE OF PROPERTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . -47-
SECTION 1006. PAYMENT OF TAXES AND OTHER CLAIMS. . . . . . . . . . . . . . . . . . . . . . . -47-
SECTION 1007. STATEMENT BY OFFICERS AS TO DEFAULT. . . . . . . . . . . . . . . . . . . . . . -48-
SECTION 1008. WAIVER OF CERTAIN COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . -48-
ARTICLE ELEVEN
REDEMPTION OF SECURITIES . . . . -48-
SECTION 1101. APPLICABILITY OF ARTICLE. . . . . . . . . . . . . . . . . . . . . . . . . . . -48-
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. . . . . . . . . . . . . . . . . . . . . -48-
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. . . . . . . . . . . . . . . -48-
SECTION 1104. NOTICE OF REDEMPTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . -49-
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. . . . . . . . . . . . . . . . . . . . . . . . . . -49-
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE. . . . . . . . . . . . . . . . . . . . . -50-
SECTION 1107. SECURITIES REDEEMED IN PART. . . . . . . . . . . . . . . . . . . . . . . . . . -50-
</TABLE>
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<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
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<S> <C> <C>
ARTICLE TWELVE
SINKING FUNDS . . . . . . . . . . . . . . -50-
SECTION 1201. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . . . . . . . . . . . . -50-
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES . . . . . . . . . . . -50-
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND . . . . . . . . . . . . . . . . . -51-
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES . . . . . . . . -51-
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED . . . . . . . . . . . . . . . . . -51-
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS . . . . . . . . . . . . . . . . . . . . -51-
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS . . . . . . . . . . . . . . . . . . . -52-
SECTION 1304. QUORUM; ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -52-
SECTION 1305. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS . . . . -52-
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS . . . . . . . . . . . . . . -53-
</TABLE>
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<PAGE> 11
INDENTURE, dated as of between FRUIT OF THE LOOM, INC., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 5000 Sears Tower,
233 South Wacker Drive, Chicago, Illinois 60606, and _________________________,
as Trustee (herein called the "Trustee"), the office of the Trustee at which at
the date hereof its corporate trust business is principally administered being
___________________________.
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 debentures,
notes or other evidences of indebtedness (herein called the "Securities"), to
be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles in
the United States, 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 in the United States at the date of such computation; and
(3) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in Section
102.
"Act", when used with respect to any Holder, has the meaning specified
in Section 105.
"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
-1-
<PAGE> 12
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person, which may include the Company,
authorized by the Trustee to act on behalf of the Trustee pursuant to Section
614 to authenticate Securities of one or more series.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, 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 to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, 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 Controller, an Assistant
Controller, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
_____________ at which at any particular time its corporate trust business
shall be principally administered, which office at the date hereof is that
indicated in the introductory paragraph of this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of a global Security, the Person designated as
Depositary by the Company pursuant to Section 301 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such person,
"Depositary" as used with respect to the Securities of any series shall mean
the Depositary with respect to the Securities of that series.
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<PAGE> 13
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Rate" has the meaning specified in Section 501.
"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.
"Indebtedness", as applied to any Person, means all indebtedness,
whether or not represented by bonds, debentures, notes or other securities,
created or assumed by such Person for the repayment of money borrowed, and
obligations, computed in accordance with generally accepted accounting
principles, as lessee under leases that, in accordance with generally accepted
accounting principles, should be recorded as capital leases. All Indebtedness
secured by a lien upon property owned by the Company or any Subsidiary and upon
which Indebtedness such Person customarily pays interest, although such Person
has not assumed or become liable for the payment of such Indebtedness, for all
purposes hereof, shall be deemed to be Indebtedness of such Person. All
Indebtedness of others guaranteed as to payment of principal by such Person or
in effect guaranteed by such Person through a contingent agreement to purchase
such Indebtedness, for all purposes hereof, shall be deemed to be Indebtedness
of such Person. Indebtedness (i) shall not include accounts payable to trade
creditors or other indebtedness for goods or services created or assumed in the
ordinary course of business and (ii) shall include only the principal component
of any obligation described in this definition.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 506.
"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.
"Officer's Certificate" means a certificate signed by the Chairman of
the Board, the Vice Chairman of the Board, the President or a Vice President,
and by the Treasurer, the Controller, the Secretary or an Assistant Treasurer,
Assistant Controller or Assistant Secretary, of the Company, and delivered to
the Trustee.
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"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Company.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities previously authenticated and delivered
under this Indenture, except:
(i) Securities previously canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been previously deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the Holders
of such Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to
it that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; and
(iv) Securities with respect to which the Company has effected
defeasance as provided in Article 4, except to the extent provided in Section
401;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether a
quorum is present at a meeting of Holders of Securities, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the principal amount thereof that would
be due and payable as of the date of such determination upon acceleration of
the Maturity thereof pursuant to Section 502, (b) the principal amount of a
Security denominated in a foreign currency shall be the Dollar equivalent,
determined by the Company on the date of original issuance of such Security, of
the principal amount (or, in the case of an Original Issue Discount Security,
the Dollar equivalent, determined on the date of original issuance of such
Security, of the amount determined as provided in (a) above), of such Security,
(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 and (d) Securities owned by Holders shall be
determined as of the Record Date established pursuant to Section 105, or if not
so established, as of the effectiveness of such request, demand, authorization,
direction, consent, notice or waiver, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good
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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, which may include the Company,
authorized by the Company to pay the principal of (and premium, if any) or
interest on any one or more series of Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified in
accordance with Section 301 subject to the provisions of Section 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security, shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"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 Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 301, or, if not so specified, the last
day of the calendar month preceding such Interest Payment Date if such Interest
Payment Date is the fifteenth day of the calendar month or the fifteenth day of
the calendar month preceding such Interest Payment Date if such Interest
Payment Date is the first day of a calendar month, whether or not such day
shall be a Business Day.
"Required Currency" has the meaning specified in Section 506.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any 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
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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.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee pursuant
to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security 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.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905.
"United States" means the United States of America (including the
States and the District of Columbia) and its "possessions", which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"U.S. Government Obligations" has the meaning specified in Section
401.
"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".
"Wholly Owned Subsidiary" means a corporation all the outstanding
voting stock (other than any directors' qualifying shares) of which is owned,
directly or indirectly, by the Company or by one or more other Wholly Owned
Subsidiaries, or by the Company and one or more other Wholly Owned
Subsidiaries. For the purposes of this definition, "voting stock" means stock
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<PAGE> 17
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.
"Yield to Maturity", when used with respect to any Original Issue
Discount Security, means the yield to maturity, if any, set forth on the face
thereof.
SECTION 102. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. Whenever this
Indenture refers to a provision of the Trust Indenture Act, the provision is
incorporated by reference in and made a part of this Indenture. The following
Trust Indenture Act terms used in this Indenture have the following meanings:
"Bankruptcy Act" means the Bankruptcy Act or Title 11 of the United
States Code.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All the other Trust Indenture Act terms used in this Indenture that
are defined by the Trust Indenture Act, defined by Trust Indenture Act
reference to another statute or defined by Commission rule under the Trust
Indenture Act and not otherwise defined herein have the meanings assigned to
them therein.
SECTION 103. COMPLIANCE CERTIFICATES AND OPINIONS. Except as otherwise
expressly provided by this Indenture, upon any application or request by the
Company to the Trustee to take any action under any provision of this
Indenture, the Company shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each Person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
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(3) a statement that, in the opinion of each such Person, such Person
has made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such Person,
such condition or covenant has been complied with.
SECTION 104. 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 stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 105. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person, by an agent duly
appointed in writing or as evidenced by electronic confirmation consistent with
the then existing practices of the Depositary or similar institutions and
participants therein. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments, record or
electronic confirmation or each of the foregoing are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments, any such record and any such electronic confirmation (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments or sending
any such electronic confirmation and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent or
sending any such electronic confirmation, or the holding of any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 601) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section. The record of any meeting of Holders of
Securities shall be evidenced in the manner provided in Section 1306.
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The Company may set a record date for purposes of determining the
identity of Holders of Registered Securities entitled to vote or consent to any
action by vote or consent authorized or permitted under this Indenture, which
record date shall be the later of 30 days prior to the first solicitation of
such consent or the date of the most recent list of Holders furnished to the
Trustee prior to such solicitation. If a record date is fixed, those persons
who were Holders of Registered Securities at such record date (or their duly
designated proxies), and only those persons, shall be entitled to take such
action with respect to such Securities by vote or consent or to revoke any vote
or consent previously given, whether or not such persons continue to be Holders
after such record date.
(b) The fact and date of the execution by any Person of any such
instrument or writing or the delivery of any such electronic confirmation may
be evidenced by the affidavit of a witness of such execution or delivery or by
a certificate of a notary public or other officer authorized by law to take
acknowledgements of deeds, certifying that the individual signing such
instrument or writing or delivering such electronic confirmation acknowledged
to him the execution or delivery thereof. Where such execution or delivery 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 or delivery of any such
instrument, writing or electronic confirmation, or other authority of the
Person executing the same, may also be evidenced in any other manner which the
Trustee deems sufficient.
(c) The principal amount and serial number of Registered Securities
held by any Person, and the date of holding the same, shall be evidenced by the
Security Register.
(d) In determining whether the Holders of the requisite principal
amount of Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver under this Indenture, the principal amount
of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes
shall be equal to the amount of the principal thereof that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502 at the time the taking of such action by the Holders of such
requisite principal amount is evidenced to the Trustee for such Securities.
(e) 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. Any consent or waiver of the Holder of any Security shall
be irrevocable for a period of six months after the date of execution thereof,
but otherwise any such Holder or subsequent Holder may revoke the request,
demand, authorization, direction, notice, consent or other Act as to his
Security or portion of his Security. Such revocation shall be effective only
if the Trustee receives the notice of revocation before the date the Act
becomes effective.
(f) Until an amendment or waiver becomes effective, a consent to it
by a Holder of a Security is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security, even if notation of the consent
is not made on any Security.
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(g) Without limiting the foregoing, a Holder entitled hereunder to
give or take any such action 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 discrete part of such principal amount.
Any amendment or waiver once effective shall bind every Holder of each
series affected by such amendment or waiver unless it is of the type described
in Section 902. In that case, the amendment or waiver shall bind each Holder
of a Security who has consented to it and every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the consenting
Holder's Security.
SECTION 106. NOTICES, ETC., TO TRUSTEE AND COMPANY. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with (1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: __________________, or (2) the Company by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
the Company addressed to it at the address of its principal office specified in
the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company, Attention: President, or
to any other address furnished in writing to the Trustee by the Company.
SECTION 107. NOTICE TO HOLDERS; WAIVER. Where this Indenture provides for
notice to Holders of Securities of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at the address of such Holder as it appears in
the Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service, or by
reason of any other cause it shall be impractical 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 any other Holders of Registered Securities.
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. Waiver of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
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SECTION 108. CONFLICT WITH TRUST INDENTURE ACT. If any provision hereof
limits, qualifies or conflicts with any provision of the Trust Indenture Act or
another provision hereof which is required to be included in this Indenture by
any of the provisions of the Trust Indenture Act, such provision of the Trust
Indenture Act shall control.
SECTION 109. 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 110. 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 111. 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 112. BENEFITS OF INDENTURE. Nothing in this Indenture or in the
Securities, expressed or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefit or
any legal or equitable rights, remedy or claim under this Indenture.
SECTION 113. GOVERNING LAWS. This Indenture and the Securities shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 114. LEGAL HOLIDAYS. In the 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 provisions of this
Indenture or of the Securities) payment of interest or principal (and premium,
if any) need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity, provided that no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be.
SECTION 115. CORPORATE OBLIGATION. No recourse may be taken, directly or
indirectly, against any incorporator, subscriber to the capital stock,
stockholder, officer, director or employee of the Company or the Trustee or of
any predecessor or successor of the Company or the Trustee with respect to the
Company's obligations on the Securities or the obligations of the Company or
the Trustee under this Indenture or any certificate or other writing delivered
in connection herewith.
SECTION 116. COUNTERPARTS This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Registered Securities, if any, of each series shall be in
substantially such form or forms (including temporary or permanent global form)
as shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If temporary Securities of
any series are issued in global form as permitted by Section 304, the form
thereof shall be established as provided in the preceding sentence. A copy of
the Board Resolution establishing the form or forms of Securities of any series
(or any such temporary global Security) shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities (or any such temporary global
Security).
The definitive Securities, 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 thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in substantially
the following form:
"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
___________________________________
as Trustee
By_________________________________
Authorized Signatory."
SECTION 203. SECURITIES IN GLOBAL FORM.
(a) A supplemental indenture to the Indenture or a Board Resolution
(and, to the extent not set forth in the Board Resolution, an Officer's
Certificate detailing the adoption of terms pursuant to the Board Resolution)
shall establish whether the Securities of a series shall be issued in whole or
in part in the form of one or more global securities and the Depositary for
such global security or securities.
(b) Notwithstanding any provisions to the contrary contained in
Section 305 of the Indenture and in addition thereto, any global security shall
be exchangeable pursuant to Section 305 of the Indenture for securities
registered in the names of Holders other than the Depositary
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<PAGE> 23
for such Security or its nominee only if (i) such Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for such
global security or if at any time such Depositary ceases to be a clearing
agency registered under the Exchange Act, and, in either case, the Company
fails to appoint a successor Depositary within 90 days of such event, (ii) the
Company executes and delivers to the Trustee an Officer's Certificate to the
effect that such global security shall be so exchangeable or (iii) an event
shall have happened and be continuing which is or after notice or lapse of time
or both, would be, an Event of Default with respect to the Securities
represented by such global security. Any global security that is exchangeable
pursuant to the preceding sentence shall be exchangeable for Securities
registered in such names as the Depositary shall direct in writing in an
aggregate principal amount equal to the principal amount of the global security
with like tenor and terms.
Except as provided in this Section 203, a global security may not be
transferred except as a whole by the Depositary with respect to such global
security to a nominee of such Depositary, by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such a successor
Depositary.
(c) Any global security issued 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 the
Depositary or a nominee of the Depositary. This Security is exchangeable for
Securities registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Indenture, and may
not be transferred except as a whole by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or another nominee
of the Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such a successor Depositary."
(d) The Depositary, as a Holder, may appoint agents and otherwise
authorize Persons that have accounts with the Depositary to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action which a Holder is entitled to give or take under the Indenture.
(e) Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 301, payment of the principal of
and interest on any global security shall be made to the person specified
therein.
(f) Except as provided in Subsection (e) above, the Company, the
Trustee and any Agent shall treat a person as the Holder of such principal
amount of outstanding Securities of such series represented by a global
security as shall be specified in a written statement of the Depositary with
respect to such global security, for purposes of obtaining any consents,
declarations or directions required to be given by the Holders pursuant to this
Indenture.
SECTION 204. CUSIP NUMBERS. The Company in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
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elements of identification printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officer's
Certificate, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Section 304, 305, 306, 906 or 1107);
(3) whether Securities of the series are to be issuable as Registered
Securities, 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 and, if so, whether beneficial owners of
interests in any such permanent global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may occur, if
other than in the manner provided in Section 305, and the Depositary for any
global Security or Securities;
(4) the manner in which, or the extent to which, or 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 304;
(5) the date or dates on which the principal (and premium, if any) of
the Securities of the series is payable or the method of determination thereof,
including, without limitation, the maturity date or dates;
(6) the rate or rates (which may be fixed or variable or based upon
such indices as the Company may elect), or the method of determination thereof,
at which the Securities of the series shall bear interest, if any, the date or
dates from which such interest shall accrue, the Interest Payment Dates on
which such interest shall be payable and, if other than as set forth in Section
101, the Regular Record Date for the interest payable on any Registered
Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions of Section
1002, the principal of (and premium, if any) and interest, if any, on the
Securities of the series shall be payable;
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(8) 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, if the Company is
to have that option;
(9) 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;
(10) the denomination in which any Registered Securities of that
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof;
(11) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(12) any additional means of satisfaction and discharge of this
Indenture with respect to Securities of the series pursuant to Section 401, any
additional conditions to discharge pursuant to Section 401 or 403 and the
application, if any, of Section 403;
(13) any deletions or modifications of or additions to the Events of
Default set forth in Section 501 or covenants of the Company set forth in
Article Ten pertaining to the Securities of the series;
(14) the terms for conversion or exchange, if any;
(15) whether the Securities will be secured and, if secured, the
nature and terms of the security;
(16) if other than Dollars, the currency, currencies or currency unit
or units in which such Securities will be denominated and in which the
principal of, and premium and interest, if any, thereon will be payable;
(17) whether, and the terms and conditions on which, the Company or a
Holder may elect that, or the other circumstances under which, payment of
principal of, or premium or interest, if any, is to be made in a currency or
currencies or currency unit or units other than that in which such Securities
are denominated;
(18) if the payments of principal of or interest on the Securities of
a series are to be made in a foreign currency other than the currency in which
such Securities are denominated, the manner in which the exchange rate with
respect to such payments shall be determined;
(19) if the amount of payments of principal of or interest on the
Securities of a series may be determined with reference to an index based on a
currency or currencies other than that in which the Securities are denominated
or designated to be payable or determined by reference to a commodity,
commodity index, stock exchange index or financial index, the manner in which
such amounts shall be determined;
(20) provisions, if any, granting special rights to the holders of
Securities of a series upon the occurrence of such events as may be specified
and the provisions, if any, relating to the subordination of the Securities of
such series to other obligations of the Company;
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(21) any provision for the conversion or exchange of Securities of a
series, either at the option of the Holder thereof or the Company, into or for
another security or securities of the Company, the security or securities into
or for which, the period or periods within which, the price or prices,
including any adjustments thereto, at which and the other terms and conditions
upon which any Securities of such series shall be converted or exchanged, in
whole or in part;
(22) if the Securities of a series are to be issued upon the exercise
of warrants, the time, manner and place for such Securities to be authenticated
and delivered;
(23) the provisions, if any, relating to any security provided for
the Securities of any series;
(24) any addition to or change in the Events of Default which applies
to any Securities of a series and any change in the right of the Trustee or the
requisite Holders of such Securities to declare the principal amount thereof
due and payable pursuant to Section 502;
(25) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of such series;
(26) any depositaries, interest rate calculation agents, exchange
rate agents or other agents with respect to Securities of such series if other
than those appointed herein; and
(27) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except, in the case of Registered Securities, as to denomination and except as
may otherwise be provided in or pursuant to the Board Resolution referred to
above and (subject to Section 303) set forth, or determined in the manner
provided, in the Officer's Certificate referred to above or in any such
indenture supplemental hereto.
At the option of the Company, interest on the Securities of any series
that bears interest may be paid by mailing a check to the address of any Holder
as such address shall appear in the Securities Register.
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
together with such Board Resolution 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 Officer's Certificate setting forth the terms of the
series.
SECTION 302. DENOMINATIONS. The Securities of each series shall be issuable
in such denominations as shall be specified and/or contemplated by Section 301.
In the absence of any such provisions with respect to the Securities of any
series, the Registered Securities of such series denominated in Dollars shall
be issuable in denominations of $1,000 and any integral multiple thereof.
Unless otherwise provided as contemplated by Section 301 with respect to any
series of Securities, any Securities of a series denominated in a currency
other than Dollars shall be issuable in denominations that are the equivalent,
as determined by the Company by reference
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to the noon buying rate in The City of New York for cable transfers for such
currency, as such rate is reported or otherwise made available by the Federal
Reserve Bank of New York, on the applicable issue date for such Securities, of
$1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The Securities
shall be executed on behalf of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its President, its Treasurer or one of its Vice
Presidents, under its corporate seal reproduced thereon or affixed thereto
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.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver to the Trustee for authentication
Securities of any series executed by the Company, 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. If provided for in
such procedures, such Company Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company or its duly
authorized agent or agents, which oral instructions shall be confirmed promptly
in writing.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such form has
been established in accordance with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms have
been established in accordance 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 legal, valid and binding
obligations of the Company, enforceable in accordance with their terms, except
as such enforcement is subject to the effect of (i) bankruptcy, insolvency,
reorganization or other law relating to or affecting creditors' rights and (ii)
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
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
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the Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Each Registered Security shall be dated the date of its
authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security, a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
309 together with a written statement (which need not comply with Section 103
and need not be accompanied by an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. TEMPORARY SECURITIES. Pending the preparation of definitive
Securities of any series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, 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, 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.
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 a like principal amount of
definitive Securities of the same series of authorized denominations. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
Any temporary global Security and any permanent global security shall,
unless otherwise provided therein, be delivered to the Depositary for credit to
the respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security 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 Security, executed by
the Company. On or after the Exchange Date such temporary global Security
shall be surrendered by the Depositary to the Trustee, as the Company's agent
for such purpose, to
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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 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 Security to be exchanged. The definitive Securities to be delivered in
exchange for any such temporary global Security shall be in registered form or
permanent global registered form, or any combination thereof, as specified
and/or contemplated by Section 301, and if any combination thereof is so
specified, as requested by the beneficial owner thereof.
Unless otherwise specified in the temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged on 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 and after the Exchange Date, the interest of a beneficial owner of
Securities of a series in a temporary global Security shall be exchanged 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. Unless otherwise specified in such temporary
global Security, any exchange shall be made free of charge to the beneficial
owners of such temporary global Security, except that a Person receiving
definitive Securities must bear the cost of insurance, postage, transportation
and the like in the event that such Person does not take delivery of such
definitive Securities in person at the offices of the Depositary.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified and/or contemplated by Section 301, interest payable on a temporary
global Security on an Interest Payment Date for Securities of such series shall
be payable to the Depositary on such Interest Payment Date, for credit without
further interest on or after such Interest Payment Date to the respective
accounts of the Persons who are the beneficial owners of such temporary global
Security on such Interest Payment Date. Any interest so received by the
Depositary 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 1003.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. The Company
shall cause to be kept for each series of Securities at one of the offices or
agencies maintained pursuant to Section 1002 a register (the register
maintained in such office and in any other office or agency of the Company in a
Place of Payment herein referred to collectively as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Registered Securities and of transfers of
Registered Securities of such series. The Trustee is hereby initially
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any 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 and of like tenor, of any authorized
denominations and of a like aggregate principal amount.
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At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series and of like
tenor, of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified and/or
contemplated by Sections 203 or 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a permanent global Security are entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified and/or contemplated by Sections
203 or 301, then without unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged, the Company shall
deliver to the Trustee definitive Securities of that series in an aggregate
principal amount equal to the principal amount of such permanent global
Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such permanent global Security shall be
surrendered from time to time in accordance with instructions given to the
Trustee (which instructions shall be in writing but need not comply with
Section 103 or be accompanied an Opinion of Counsel) by the Depositary or such
other depositary as shall be specified in the Company Order with respect
thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities of the same series
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such permanent global Security, a like aggregate principal
amount of other definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such permanent global
Security to be exchanged, which Securities shall be in the form of Registered
Securities; provided, however, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of Securities
of that series is to be redeemed and ending on the relevant Redemption Date.
Promptly following any such exchange in part, such permanent global Security
shall be returned by the Trustee to the Depositary or such other depositary
referred to above in accordance with the instructions of the Company referred
to above. If a Registered Security is issued in exchange for any portion of a
permanent global Security after the close of business at the office or agency
where such exchange occurs on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of Defaulted
Interest, interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be
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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
exchange pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of such series selected for redemption and ending at
the close of business on the day of the mailing of the relevant notice of
redemption or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. If any
mutilated Security is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fee and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. 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. Unless
otherwise provided with respect to the Securities of any series, payment of
interest may be made at the option of the Company, 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.
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 (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Registered Security of such series and the date of the proposed payment,
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 provided in this Clause (1). 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 (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this Clause (2), such manner of payment shall be deemed practicable by the
Trustee.
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Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture, upon registration of transfer of, in exchange
for or in lieu of, any other Security, shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS. 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 premium, if any) and
(subject to Sections 305 and 307) interest on such Registered Security and for
all other purposes whatsoever, whether or not such Security is 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 309. CANCELLATION. All Securities surrendered for payment,
redemption, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee. All Registered Securities so delivered
shall be promptly canceled by the Trustee. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall
be disposed of as directed by a Company Order.
Any temporary global Security shall be disposed of if the entire
aggregate principal amount of the Securities represented thereby has been
exchanged. Permanent global Securities shall not be disposed of until
exchanged in full for definitive Securities or until payment thereon is made in
full.
SECTION 310. COMPUTATION OF INTEREST. Except as otherwise specified and/or
contemplated by Section 301 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a year of twelve
30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture shall
upon Company Request cease to be of further effect with respect to Securities
of a series, and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to Securities of such series, when
(1) either
(A) all Securities of such series previously authenticated
and delivered (other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has previously been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
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Company or discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) with respect to all Outstanding Securities of such series
not previously delivered to the Trustee for cancellation, the Company has
deposited or caused to be deposited with the Trustee as trust funds, under the
terms of an irrevocable trust agreement in form and substance satisfactory to
the Trustee, for that purpose money or U.S. Government Obligations maturing as
to principal and interest in such amounts and at such times as will, together
with the income to accrue thereon, without consideration of any reinvestment
thereof, be sufficient to pay and discharge the entire indebtedness on all
Outstanding Securities of such series not previously delivered to the Trustee
for cancellation for principal (and premium, if any) and interest to the Stated
Maturity or any Redemption Date contemplated by the penultimate paragraph of
this Section, as the case may be; or
(C) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section 301, to
be applicable to the Securities of such series;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Outstanding Securities of such
series;
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities of such
series pursuant to this Section 401; and
(4) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture with
respect to the Outstanding Securities of such series have been complied with.
For the purposes of this Indenture, "U.S. Government Obligations"
means direct non-callable obligations of, or non-callable obligations the
payment of principal of and interest on which is guaranteed by, the United
States of America, or to the payment of which obligations or guarantees the
full faith and credit of the United States of America is pledged, or beneficial
interests in a trust the corpus of which consists exclusively of money or such
obligations or a combination thereof.
If any Outstanding Securities of such series are to be redeemed prior
to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory sinking fund requirement, the
trust agreement shall provide therefor and the Company shall make such
arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Outstanding Securities of such series pursuant to this Section
401, the obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section 614 and,
except for a discharge pursuant to subclause (A) of clause (1) of this Section,
the obligations of the Company under Sections 305, 306, 404, 1001 and 1002 and
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the obligations of the Trustee under Section 402 and the last paragraph of
Section 1003, shall survive.
SECTION 402. APPLICATION OF TRUST MONEY. Subject to the provisions of the
last paragraph of Section 1003, all money deposited with the Trustee pursuant
to Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest for whose payment such money
has been deposited with the Trustee.
SECTION 403. DISCHARGE OF LIABILITY ON SECURITIES OF ANY SERIES. If this
Section is specified, as contemplated by Section 301, to be applicable to
Securities of any series, the Company shall be deemed to have paid and
discharged the entire indebtedness on all the Outstanding Securities of such
series, the obligation of the Company under this Indenture and the Securities
of such series, to pay the principal of (and premium, if any) and interest on
Securities of such series, shall cease, terminate and be completely discharged
and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging such satisfaction and discharge, when
(1) the Company has complied with the provisions of Section 401 of
this Indenture (other than any additional conditions specified pursuant to
Sections 301 and 401(3)) with respect to all Outstanding Securities of such
series;
(2) the Company has delivered to the Trustee a Company Request
requesting such satisfaction and discharge;
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities of such
series pursuant to this Section 403; and
(4) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the discharge of the indebtedness on the Outstanding
Securities of such series have been complied with.
Upon the satisfaction of the conditions set forth in this Section with
respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that, the Company shall not be discharged
from any payment obligations in respect of Securities of such series which are
deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law or pursuant to Section 305 or 306.
SECTION 404. REINSTATEMENT. If the Trustee or Paying Agent is unable to apply
any money or U.S. Government Obligations deposited with respect to Securities
of any series in accordance with Section 401 by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture with respect to the Securities of such series
and the Securities of such series shall be revived and reinstated as though no
deposit had
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occurred pursuant to Section 401 until such time as the Trustee or Paying Agent
is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 401; provided, however, that if the Company has made
any payment of principal of (or premium, if any) or interest on any Securities
because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money or U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT. "Event of Default", wherever used herein with
respect to Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless it is either inapplicable to a
particular series or it is specifically deleted or modified in or pursuant to
the supplemental indenture or Board Resolution establishing such series of
Securities or in the form of Security for such series:
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuation of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series, and continuation of such default
for a period of 60 days; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is specifically dealt with
elsewhere in this Section or which has expressly been included in this
Indenture solely for the benefit of one or more series of Securities other than
that series), and continuation of such default or breach for a period of 90
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of all Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(5) the 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 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 continuation of
any such decree or order for relief or any such other decree or order remains
unstayed and in effect for a period of 90 consecutive days; or
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(6) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it, of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State 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 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
(7) any other Event of Default provided with respect to Securities of
that series.
Notwithstanding the foregoing provisions of this Section 501, if the
principal of (and premium, if any) or any interest on any Security is payable
in a currency or currencies (including a composite currency) other than Dollars
and such currency (or currencies) is (or are) not available to the Company for
making payment thereof due to the imposition of exchange controls or other
circumstances beyond the control of the Company, the Company will be entitled
to satisfy its obligations to Holders of such Securities by making such payment
in Dollars in an amount equal to the Dollar equivalent of the amount payable in
such other currency, as determined by the Trustee by reference to the noon
buying rate in The City of New York for cable transfers for such currency
("Exchange Rate"), as such Exchange Rate is reported or otherwise made
available by the Federal Reserve Bank of New York on the date of such payment,
or, if such rate is not then available, on the basis of the most recently
available Exchange Rate. Notwithstanding the foregoing provisions of this
Section 501, any payment made under such circumstances in Dollars where the
required payment is in a currency other than Dollars will not constitute an
Event of Default under this Indenture.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an Event
of Default with respect to any 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 (i) the
series affected by such default (in the case of an Event of Default described
in clause (1), (2), (3) or (7) of Section 501) or (ii) all series of Securities
(in the case of other Events of Default) may declare the principal amount (or,
if any such Securities are Original Issue Discount Securities, such portion of
the principal amount as may be specified in the terms of that series) and any
accrued but unpaid interest thereon of all of the Securities of the series
affected by such default or all series, as the case may be, 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) and any accrued but unpaid interest thereon shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) 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 (or
of all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
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(1) the Company has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series (or
of all series, as the case may be),
(B) the principal of (and premium, if any, on) any Securities
of that series (or of all series, as the case may be) which have become due
otherwise than by such declaration of acceleration and interest thereon at the
rate or rates prescribed therefor in such Securities (in the case of Original
Issue Discount Securities, the Securities' Yield to Maturity),
(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 (in the case of Original Issue Discount Securities, the Securities'
Yield to Maturity), and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series
(or of all series, as the case may be), other than the non-payment of the
principal of Securities of that series (or of all series, as the case may be)
which has become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if default is made in the payment of (1) any
installment of interest on any Security of any series when such interest
becomes due and payable and such default continues for a period of 30 days, or
(2) 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, the whole amount then due and
payable on such Securities for principal (and premium, if any) and interest
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue
interest, at the rate or rates prescribed therefor in such Securities (or in
the case of Original Issue Discount Securities, the Securities' Yield to
Maturity), and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the
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Holders of Securities of such series by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to the Company or
any other obligor upon the Securities or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal (or lesser amount in the case of Original Issue Discount Securities)
of the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(i) to file and prove a claim for the whole amount of principal (or
lesser amount in the case of Original Issue Discount Securities) (and premium,
if any) and interest owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceedings.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES. All
rights of action and claim under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or
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interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal (and premium, if any) and interest,
respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
To the fullest extent allowed under applicable law, if for the purpose
of obtaining judgment against the Company in any court it is necessary to
convert the sum due in respect of the principal of (or premium, if any) or
interest on the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Business Day next
preceding that on which final judgment is given. Neither the Company nor the
Trustee shall be liable for any shortfall nor shall it benefit from any
windfall in payments to Holders of Securities under this Section caused by a
change in exchange rates between the time the amount of a judgment against it
is calculated as above and the time the Trustee converts the Judgment Currency
into the Required Currency to make payments under this Section to Holders of
Securities, but payment of such judgment shall discharge all amounts owed by
the Company on the claim or claims underlying such judgment.
SECTION 507. LIMITATION ON SUITS. No Holder of any Security of any series
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) an Event of Default with respect to Securities of such series
shall have occurred and be continuing and such Holder has previously given
written notice to the Trustee of such continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
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it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST. Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any Holder
has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding has been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Holder of any Securities to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. CONTROL BY HOLDERS. With respect to Securities of any series,
the Holders of a majority in principal amount of the Outstanding Securities of
such series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, relating to or arising
under an Event of Default described in clause (1), (2), (3) or (7) of Section
501, and with respect to all Securities the Holders of a majority in principal
amount of all Outstanding Securities shall have the right to direct the time,
method and place of conducting any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, not relating to or
arising under such an Event of Default, provided that in each such case (1)
such direction
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shall not be in conflict with any rule of law or with this Indenture, and (2)
the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of 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 relating to or arising under an Event of Default
described in clause (3) or (7) of Section 501 and its consequences, and the
Holders of a majority in principal amount of all Outstanding Securities may on
behalf of the Holders of all Securities waive any other past default hereunder
and its consequences, except in each case a default (1) in the payment of the
principal (or premium, if any) or interest on any Security, or (2) in respect
of a covenant or provision hereof which under Article Nine cannot be modified
or amended without the consent of the Holder of each Outstanding Security
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 514. UNDERTAKING FOR COSTS. All parties to this Indenture agree, and
each Holder of any Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Company, to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest on any Security on
or after the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS. The Company covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuation of an Event of Default, (1) the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and (2) in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any such certificates
or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that (1) this Subsection shall
not be construed to limit the effect of Subsection (a) of this Section, (2) the
Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it shall be proven that the Trustee was negligent
in ascertaining the pertinent facts, (3) the Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in principal amount
of the Outstanding Securities of any series or of all series, determined as
provided in Section 512, relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture with respect to the
Securities of such series, and (4) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 602. NOTICE OF DEFAULTS. Within 90 days after the occurrence of any
default hereunder with respect to the Securities of any series, the Trustee
shall transmit by mail to all Holders of Securities of such series, as their
names and addresses appear in the Security Register, notice of such default
hereunder known to the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of (or premium, if any) or interest on any Security of such
series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the
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executive committee or a trust committee of directors or Responsible Officers
of the Trustee in good faith determines that the withholding of such notice is
in the best interest of the Holders of Securities of such series. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of Section
601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, 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 may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proven or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
shall be prescribed specifically herein) may, in the absence of bad faith on
its part, rely upon an Officer's 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 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. The
recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness.
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The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES. The Trustee, any Authenticating Agent, any
Paying Agent, any Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 608 and 613, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT. The Company agrees (1) to pay to
the Trustee from time to time reasonable compensation for all services rendered
by it hereunder (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust), (2) except
as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its agents and counsel), except any such expense, disbursement or advance as
may be attributable to its negligence or bad faith, and (3) to indemnify the
Trustee for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of, or premium, if any, or interest,
if any, on, particular Securities.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, with respect to the Securities of any series, it
shall, within 90 days after ascertaining that it has such conflicting interest,
either eliminate such conflicting interest or resign with respect to the
Securities of that series in the manner and with the effect hereinafter
specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the Securities of
any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit by mail to all Holders of Securities of that series, as
their names and addresses appear in the Security Register, notice of such
failure.
(c) For the purposes of this Section, the term "conflicting interest"
shall have the meaning specified in Section 310(b) of the Trust Indenture Act
and the Trustee shall comply with Section 310(b) of the Trust Indenture Act;
provided, that there shall be excluded from the
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operation of Section 310(b) of the Trust Indenture Act with respect to the
Securities of any series this Indenture, and any other indenture or indentures
under which other securities, or certificates of interest or participation in
other securities, of the Company are outstanding, if the requirements for such
exclusion set forth in Section 310(b)(1) of the Trust Indenture Act are met.
For purposes of the preceding sentence, the optional provision permitted by the
second sentence of Section 310(b)(9) of the Trust Indenture Act shall be
applicable.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall at all
times be a Trustee hereunder which shall 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 exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of such supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the resigning Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time (1) the Trustee shall fail to comply with Section
608(a) after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or (2) the
Trustee shall cease to be eligible under Section 609 and shall fail to resign
after written request therefor by the Company or by any such Holder of
Securities, or (3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (i) the Company by a Board
Resolution may remove the Trustee with respect to all Securities, or (ii)
subject to Section 514, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
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(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and such successor
Trustee or Trustees shall comply with the applicable requirements of Section
611. If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series delivered to
the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid,
to all Holders of Securities of such series as their names and addresses appear
in the Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to all
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Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS. Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, 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 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The Trustee
shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship described in Section 311(b) of the Trust Indenture Act.
A Trustee who has resigned or been removed shall be subject to Section 311(a)
of the Trust Indenture Act to the extent indicated therein.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT. The Trustee may appoint an
Authenticating Agent or Agents which shall be authorized to act on behalf of
the Trustee to authenticate Securities issued upon original issue and upon
exchange, registration of transfer or partial redemption or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
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authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State
thereof or the District of Columbia; authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 or equivalent amount expressed in a foreign currency and subject to
supervision or examination by Federal or State authority or authority of such
other country. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of such 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 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 607.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
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"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
_______________________________________
_______________________________________
As Trustee
By ____________________________________
As Authenticating Agent
By ____________________________________
Authorized Signatory
Notwithstanding any provision of this Section 614 to the contrary, if
at any time any Authenticating Agent appointed hereunder with respect to any
series of Securities shall not also be acting as the Security Registrar
hereunder with respect to any series of Securities, then, in addition to all
other duties of an Authenticating Agent hereunder, such Authenticating Agent
shall also be obligated: (i) to furnish to the Security Registrar promptly all
information necessary to enable the Security Registrar to maintain at all times
an accurate and current Security Register and (ii) prior to authenticating any
Security denominated in a foreign currency, to ascertain from the Company the
units of such foreign currency that are required to be determined by the
Company pursuant to Section 302.
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE WITH NAMES AND ADDRESSES OF HOLDERS.
With respect to each series of Securities, 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 relating to that series (or, if there is no Regular Record Date relating
to that series, on January 1 and July 1), a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of that
series as of such dates, 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, such list to be dated 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, if so acting.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of each series contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders of each series received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy any list furnished to
it as provided in Section 701 upon receipt of a new list so furnished.
(b) Holders of Securities may communicate pursuant to Section 312(b)
of the Trust Indenture Act with other Holders with respect to their rights
under this Indenture or under the Securities.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 702(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 702(b).
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the
first May 15 following the first date of issuance of Securities under this
Indenture, the Trustee shall transmit by mail to Holders a brief report dated
as of such May 15 that complies with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) of the Trust
Indenture Act.
(c) Reports pursuant to this Section shall be transmitted by mail:
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(1) to all Holders of Registered Securities, as the names and
addresses of such Holders appear in the Security Register, and
(2) except in the case of reports pursuant to Subsection (b)
of this Section, to each Holder of a Security whose name and address
is preserved at the time by the Trustee, as provided in Section
702(a).
(d) A copy of each report pursuant to Subsection (a) or (b) of this
Section 703 shall, at the time of its transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with the
Commission and with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
SECTION 704. REPORTS BY COMPANY. The Company shall file with the Trustee,
within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended, and shall
otherwise comply with Section 314(a) of the Trust Indenture Act.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. The
Company shall not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, unless:
(1) the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company substantially as an entirety
shall be a corporation, partnership, limited liability company or trust, shall
be organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
(and premium, if any) and interest on all the Securities and the performance of
every covenant of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture, comply with this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
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SECTION 802. SUCCESSOR PERSON SUBSTITUTED. Upon any consolidation by the
Company with or merger by the Company into any other Person or any conveyance,
transfer or lease of the properties and assets of the Company substantially as
an entirety in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of such lease, the predecessor Person shall
be relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. Without the
consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein and
in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to all or
any series of the Securities (and, if such Event of Default is applicable to
less than all series of Securities, specifying the series to which such Event
of Default is applicable); or
(4) to permit or facilitate the issuance of Securities in
uncertificated form, provided that any such action shall not adversely affect
the interests of the Holders of Securities of any series in any material
respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution
of such supplemental indenture which is adversely affected by such change in or
elimination of such provision; or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(7) 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
611(b); or
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(8) 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 such other provisions as may be made shall not
adversely affect the interests of the Holders of Securities of any series in
any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
consent of the Holders of a majority in principal amount of the Outstanding
Securities of all series affected by such supplemental indenture (acting as one
class), by Act of such Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502, or
change any Place of Payment where, or the coin or currency or currencies
(including composite currencies) in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of Outstanding
Securities, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide with respect
to any particular series the right to condition the effectiveness of any
supplemental indenture as to that series on the consent of the Holders of a
specified percentage of the aggregate principal amount of Outstanding
Securities of such series (which provision may be made pursuant to Section 301
without the consent of any Holder) 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 1008, or the deletion of this proviso, in
accordance with the requirements of Sections 611(b) and 901(7).
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
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series of Securities, or which modifies the rights of the Holders of Securities
of such series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or accepting
the additional trusts created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture 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,
immunities or liabilities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities previously or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements
of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES. Securities
of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The Company
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of (and premium, if any) and interest on
the Securities of that series in accordance with the terms of the Securities
and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. 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
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of that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its office or agency to receive such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST. If the
Company shall at any time act as its own Paying Agent with respect to any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, the Company will, on or before each due date of the
principal of (and premium, if any) or interest on any Securities of that
series, deposit with a Paying Agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any payment
of principal (and premium, if any) or interest on the Securities of that
series; and
(3) at any time during the continuation of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any
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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 sums were held by the Company or such Paying Agent; and, upon
such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for
three years after such principal (and premium, if any) or interest has become
due and payable shall, unless otherwise required by mandatory provisions of
applicable escheat, or abandoned or unclaimed property law, be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in the Borough of Manhattan, The City of New York, notice that such money
remains unclaimed and that, after a date specified herein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will, unless otherwise required by mandatory
provisions of applicable escheat, or abandoned or unclaimed property law, be
repaid to the Company.
SECTION 1004. EXISTENCE. Subject to Article Eight, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence.
SECTION 1005. MAINTENANCE OF PROPERTIES. The Company will cause all
properties used or useful in the conduct of its business 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 that Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 1006. PAYMENT OF TAXES AND OTHER CLAIMS. The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all material 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 material lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
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SECTION 1007. 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 so long as any Security is outstanding
hereunder, an Officers' Certificate, stating that a review of the activities of
the Company during such year and of performance under this Indenture has been
made under the supervision of the signers thereof and whether or not to the
best of their knowledge the Company is in default in the fulfillment of any of
its obligations under this Indenture, and if the Company shall be in default,
specifying each such default known to them and the nature and status thereof.
SECTION 1008. WAIVER OF CERTAIN COVENANTS. The Company may omit in any
particular instance to comply with any covenant or condition set forth in
Sections 1004 to 1006, inclusive, or any covenant added for the benefit of any
series of Securities as contemplated by Section 301 (unless otherwise specified
pursuant to Section 301) if before or after the time for such compliance the
Holders of a majority in principal amount of the Outstanding Securities of all
series affected by such omission (acting as one class) shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant 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 covenant or condition
shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE. Securities of any series which are
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified and/or contemplated by Section
301 for Securities of any series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of the
Company to redeem any Securities shall be evidenced by 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 and of
the principal amount of Securities of such series to be redeemed. In the case
of any redemption of Securities prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officer's Certificate
evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. If less than
all the Securities of any series are to be redeemed (other than pursuant to
Section 1108), 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 of the principal amount
of Registered Securities of such series of a denomination larger than the
minimum
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authorized denomination for Securities of that series or of the principal
amount of global Securities of such series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION. Notice of redemption shall be given by
first-class mail, postage prepaid, mailed not less than 30 or more than 60 days
prior to the Redemption Date, to each Holder of Securities to be redeemed, at
his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after such date (or in the event
of a redemption pursuant to Section 1108, and if applicable, a statement that
no interest is payable with respect to such security),
(5) the place or places where such Securities, are to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. On or before any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
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SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company shall default in
the payment of the Redemption Price and accrued interest) such Securities shall
cease to bear interest. Upon surrender of any such Security for redemption in
accordance with such notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date;
provided however, that 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 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security or, in the case of Original Issue Discount Securities,
the Securities' Yield to Maturity.
SECTION 1107. 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 Stated Maturity, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE. The provisions of this Article shall
be applicable to any sinking fund for the retirement of Securities of a series
except as otherwise specified and/or contemplated by Section 301 for Securities
of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". Unless otherwise provided by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES. The
Company (1) may deliver Outstanding Securities of a series (other than any
previously called for redemption), and (2) may apply as a credit Securities of
a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of
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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 payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND. Not less than 60
days prior to each sinking fund payment date for any series of Securities, the
Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivery of or by crediting Securities of that series pursuant to Section 1202
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 1103 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner
provided in Section 1104. Such notice having been duly given, the redemption
of such Securities shall be made upon the terms and in the manner stated in
Sections 1106 and 1107.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of Holders
of Securities of any or all series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1301, to be held
at such times and at such place in New York, New York, as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 107, not less than 20 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in aggregate principal amount of the Outstanding
Securities of any series, shall have requested the Trustee for any such series
to call a meeting of the Holders of Securities of such series for any purpose
specified in Section 1301, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have made the first publication of the notice of such meeting within 30
days after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be,
may determine the time and the place in New York, New York, for such meeting
and may call such meeting for such purposes by giving notice thereof as
provided in Subsection (a) of this Section.
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SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled to vote
at any meeting of Holders of Securities of any series, a Person shall be (1) a
Holder of one or more Outstanding Securities of such series, or (2) a Person
appointed by an instrument in writing a proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 1304. QUORUM; ACTION. The Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series. In
the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In any other case, the meeting may be adjourned
for a period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting may be further adjourned
for a period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Subject to Section
1305(d), notice of the reconvening of any adjourned meeting shall be given as
provided in Section 1302(a), except that such notice need be given only once
not less than five days prior to the date on which the meeting is scheduled to
be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly that Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted by the affirmative vote of the Holders
of a majority in aggregate principal amount of the Outstanding Securities of
that series; provided, however, that, except as limited by the proviso to
Section 902, any resolution with respect to any request, demand, authorization,
direction, notice, consent or waiver which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage that is
less than a majority in aggregate principal amount of the Outstanding
Securities of a series and may be adopted at a meeting or an adjourned meeting
duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in aggregate
principal amount of the Outstanding Securities of that series.
Except as limited by the proviso to Section 902, any resolution passed
or decision taken at any meeting of Holders of Securities of any series duly
held in accordance with this Section shall be binding on all the Holders of
Securities of such series, whether or not present or represented at the
meeting.
SECTION 1305. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) The holdings of Securities shall be evidenced in the manner
specified in Section 105 and the appointment of any proxy shall be evidenced in
the manner specified in Section 105 or by having the signature of the person
executing the proxy witnessed or guaranteed by any trust company, bank or
banker. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without other
proof.
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(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1302(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series and each
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security of such series or as a proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1302 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of such series represented at the meeting;
and the meeting may be held as so adjourned without further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The vote upon
any resolution submitted to any meeting of Holders of Securities of any series
shall be by written ballots on which shall be subscribed the signatures of the
Holders of Securities of such series or of their representatives by proxy and
the principal amounts and serial numbers of the Outstanding Securities of such
series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to such record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that such notice was
given as provided in Section 1302 and, if applicable, Section 1304. Each copy
shall be signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one such copy shall be delivered to the Company,
and another to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
* * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
FRUIT OF THE LOOM, INC.
[CORPORATE SEAL] By_____________________________________
Print Name: ___________________________
Title: ________________________________
[TRUSTEE]
[CORPORATE SEAL] By_____________________________________
Print Name: ___________________________
Title: ________________________________
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STATE OF _________________ )
) SS
COUNTY OF _______ )
On the _____ day of _______________________________, before me
personally came _____________________________________________, to me known,
who, being by me duly sworn, did depose and say that he is ________________ of
FRUIT OF THE LOOM, INC., one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
__________________________________________________________
Notary Public in _________ County for the State of _______
My Commission Expires __________________________
[NOTARIAL SEAL]
STATE OF _________________ )
) SS
COUNTY OF _______ )
On the _____ day of _______________________________, before me
personally came _____________________________________________, to me 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.
_________________________________________________________
Notary Public in _________ County for the State of ______
My Commission Expires __________________________
[NOTARIAL SEAL]
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<PAGE> 1
EXHIBIT 4.2
================================================================================
FRUIT OF THE LOOM, INC.
AND
_______________________
TRUSTEE
____________
INDENTURE
DATED AS OF
____________
SUBORDINATED DEBT SECURITIES
================================================================================
<PAGE> 2
Fruit of the Loom, Inc.
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939, as amended:
<TABLE>
<S> <C> <C>
SECTION 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608, 610
SECTION 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
SECTION 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
SECTION 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .101, 703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
SECTION 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
SECTION 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
SECTION 316 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
</TABLE>
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<TABLE>
<S> <C> <C>
(b) . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . 105(a)
SECTION 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . .1003
SECTION 318 (a) . . . . . . . . . . . . . . . . . . . . . . 108
</TABLE>
- ----------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE> 4
TABLE OF CONTENTS
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . -1-
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION . . . . . . . . -1-
SECTION 101. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . -1-
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . -2-
Board of Directors . . . . . . . . . . . . . . . . . . . . . . -2-
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . -2-
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . -2-
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
Company Request and Company Order . . . . . . . . . . . . . . -2-
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . -2-
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . -2-
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
Dollar or $ . . . . . . . . . . . . . . . . . . . . . . . . . -3-
Event of Default . . . . . . . . . . . . . . . . . . . . . . . -3-
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . -3-
Exchange Rate . . . . . . . . . . . . . . . . . . . . . . . . -3-
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . -3-
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
Interest Payment Date . . . . . . . . . . . . . . . . . . . . -3-
Judgment Currency . . . . . . . . . . . . . . . . . . . . . . -3-
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
Officer's Certificate . . . . . . . . . . . . . . . . . . . . -3-
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . -4-
Original Issue Discount Security . . . . . . . . . . . . . . . -4-
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . -4-
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . -5-
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . -5-
Predecessor Security . . . . . . . . . . . . . . . . . . . . . -5-
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . -5-
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . -5-
Registered Security . . . . . . . . . . . . . . . . . . . . . -5-
Regular Record Date . . . . . . . . . . . . . . . . . . . . . -5-
Required Currency . . . . . . . . . . . . . . . . . . . . . . -5-
Responsible Officer . . . . . . . . . . . . . . . . . . . . . -5-
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<PAGE> 5
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . .-6-
Security Register . . . . . . . . . . . . . . . . . . . . . . .-6-
Security Registrar . . . . . . . . . . . . . . . . . . . . . . .-6-
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . .-6-
Special Record Date . . . . . . . . . . . . . . . . . . . . . .-6-
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . .-6-
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . .-6-
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . .-6-
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . .-6-
United States . . . . . . . . . . . . . . . . . . . . . . . . .-6-
U.S. Government Obligations . . . . . . . . . . . . . . . . . .-6-
Vice President . . . . . . . . . . . . . . . . . . . . . . . . .-7-
Wholly Owned Subsidiary . . . . . . . . . . . . . . . . . . . .-7-
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . .-7-
SECTION 102. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. . . . .-7-
SECTION 103. COMPLIANCE CERTIFICATES AND OPINIONS. . . . . . . . . . . .-7-
SECTION 104. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. . . . . . . . . . .-8-
SECTION 105. ACTS OF HOLDERS. . . . . . . . . . . . . . . . . . . . . .-8-
SECTION 106. NOTICES, ETC., TO TRUSTEE AND COMPANY. . . . . . . . . . -10-
SECTION 107. NOTICE TO HOLDERS; WAIVER. . . . . . . . . . . . . . . . -10-
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT. . . . . . . . . . . -11-
SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS. . . . . . . . . -11-
SECTION 110. SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . -11-
SECTION 111. SEPARABILITY CLAUSE. . . . . . . . . . . . . . . . . . . -11-
SECTION 112. BENEFITS OF INDENTURE. . . . . . . . . . . . . . . . . . -11-
SECTION 113. GOVERNING LAWS. . . . . . . . . . . . . . . . . . . . . -11-
SECTION 114. LEGAL HOLIDAYS. . . . . . . . . . . . . . . . . . . . . . -11-
SECTION 115. CORPORATE OBLIGATION. . . . . . . . . . . . . . . . . . . -11-
ARTICLE TWO
SECURITY FORMS . . . . . . . . . . . . -12-
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SECTION 201. FORMS GENERALLY. . . . . . . . . . . . . . . . . . . . -12-
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. . . . -12-
SECTION 203. SECURITIES IN GLOBAL FORM. . . . . . . . . . . . . . . -12-
SECTION 204. CUSIP NUMBERS . . . . . . . . . . . . . . . . . . . . . -13-
ARTICLE THREE
THE SECURITIES . . . . . . . . . . . -14-
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. . . . . . . . . . -14-
SECTION 302. DENOMINATIONS. . . . . . . . . . . . . . . . . . . . . -16-
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. . . . . -17-
SECTION 304. TEMPORARY SECURITIES. . . . . . . . . . . . . . . . . . -18-
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. . -19-
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. . . . -21-
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. . . . . -21-
SECTION 308. PERSONS DEEMED OWNERS. . . . . . . . . . . . . . . . . -23-
SECTION 309. CANCELLATION. . . . . . . . . . . . . . . . . . . . . . -23-
SECTION 310. COMPUTATION OF INTEREST. . . . . . . . . . . . . . . . -23-
ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . -23-
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. . . . . . . . -23-
SECTION 402. APPLICATION OF TRUST MONEY. . . . . . . . . . . . . . . -24-
SECTION 403. DISCHARGE OF LIABILITY ON SECURITIES OF ANY SERIES. . . -25-
SECTION 404. REINSTATEMENT. . . . . . . . . . . . . . . . . . . . . -25-
ARTICLE FIVE
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<PAGE> 7
REMEDIES. . . . . . . . . . . . . . . .-26-
SECTION 501. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . .-26-
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. . . . .-27-
SECTION 503. COLLECTION OF INDEBTEDNESS AND
SUITS FOR ENFORCEMENT BY TRUSTEE . . . . . . . . . . . .-28-
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. . . . . . . . . . . . . .-29-
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
OF SECURITIES . . . . . . . . . . . . . . . . . . . . . .-29-
SECTION 506. APPLICATION OF MONEY COLLECTED. . . . . . . . . . . . . . .-29-
SECTION 507. LIMITATION ON SUITS. . . . . . . . . . . . . . . . . . . .-30-
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST . . . . . . . . . . . . -31-
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. . . . . . . . . . . . .-31-
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. . . . . . . . . . . . . . .-31-
SECTION 511. DELAY OR OMISSION NOT WAIVER. . . . . . . . . . . . . . . .-31-
SECTION 512. CONTROL BY HOLDERS. . . . . . . . . . . . . . . . . . . . .-31-
SECTION 513. WAIVER OF PAST DEFAULTS. . . . . . . . . . . . . . . . . .-32-
SECTION 514. UNDERTAKING FOR COSTS. . . . . . . . . . . . . . . . . . .-32-
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS. . . . . . . . . . . . . .-32-
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . .-32-
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES. . . . . . . . . . . .-32-
SECTION 602. NOTICE OF DEFAULTS. . . . . . . . . . . . . . . . . . . . .-33-
SECTION 603. CERTAIN RIGHTS OF TRUSTEE. . . . . . . . . . . . . . . . .-34-
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. . .-34-
SECTION 605. MAY HOLD SECURITIES. . . . . . . . . . . . . . . . . . . .-35-
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SECTION 606. MONEY HELD IN TRUST. . . . . . . . . . . . . . . . . . . . .-35-
SECTION 607. COMPENSATION AND REIMBURSEMENT. . . . . . . . . . . . . . . .-35-
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS. . . . . . . . . . .-35-
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. . . . . . . . . . .-36-
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. . . . . .-36-
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. . . . . . . . . . . .-37-
SECTION 612. MERGER, CONVERSION, CONSOLIDATION
OR SUCCESSION TO BUSINESS . . . . . . . . . . . . . . . . .-38-
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. . . . . .-38-
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT. . . . . . . . . . . . .-38-
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . . . . -41-
SECTION 701. COMPANY TO FURNISH TRUSTEE WITH NAMES AND
ADDRESSES OF HOLDERS.. . . . . . . . . . . . . . . . . . . .-41-
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS. . . .-41-
SECTION 703. REPORTS BY TRUSTEE. . . . . . . . . . . . . . . . . . . . . .-41-
SECTION 704. REPORTS BY COMPANY. . . . . . . . . . . . . . . . . . . . . .-42-
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . . . . .-42-
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. . . . .-42-
SECTION 802. SUCCESSOR PERSON SUBSTITUTED. . . . . . . . . . . . . . . . .-43-
ARTICLE NINE
SUPPLEMENTAL INDENTURES . . . . . . . . . . . -43-
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. . . . . .-43-
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. . . . . . .-44-
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SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES. . . . . . . . . . . . -45-
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES. . . . . . . . . . . . . -45-
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT. . . . . . . . . . . . -45-
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES. . . . . -45-
ARTICLE TEN
COVENANTS . . . . . . . . . . . . . . . -45-
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST . . . . . . . . -45-
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . . .-45-
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST. . . . . .-46-
SECTION 1004. EXISTENCE. . . . . . . . . . . . . . . . . . . . . . . . . .-47-
SECTION 1005. MAINTENANCE OF PROPERTIES. . . . . . . . . . . . . . . . . .-47-
SECTION 1006. PAYMENT OF TAXES AND OTHER CLAIMS. . . . . . . . . . . . . .-47-
SECTION 1007. STATEMENT BY OFFICERS AS TO DEFAULT. . . . . . . . . . . . .-47-
SECTION 1008. WAIVER OF CERTAIN COVENANTS. . . . . . . . . . . . . . . . .-48-
ARTICLE ELEVEN
REDEMPTION OF SECURITIES . . . . . . . . . . . .-48-
SECTION 1101. APPLICABILITY OF ARTICLE. . . . . . . . . . . . . . . . . .-48-
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. . . . . . . . . . . .-48-
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. . . . . .-48-
SECTION 1104. NOTICE OF REDEMPTION. . . . . . . . . . . . . . . . . . . .-49-
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. . . . . . . . . . . . . . . . .-49-
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE. . . . . . . . . . . .-49-
SECTION 1107. SECURITIES REDEEMED IN PART. . . . . . . . . . . . . . . . .-50-
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ARTICLE TWELVE
SINKING FUNDS . . . . . . . . . . . . . . -50-
SECTION 1201. APPLICABILITY OF ARTICLE. . . . . . . . . . . . . . . . . -50-
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES. . . -50-
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND. . . . . . . . . -50-
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES. . . . . . . . . . . . . . . . -51-
SECTION 1301. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS. . . . . . . -51-
SECTION 1302. CIRCUMSTANCES REQUIRING PRIOR PAYMENT OF SENIOR
INDEBTEDNESS. . . . . . . . . . . . . . . . . . . . . . . -51-
SECTION 1303. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS. . -52-
SECTION 1304. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS. . . . . . . . -52-
SECTION 1305. TRUSTEE TO EFFECTUATE SUBORDINATION. . . . . . . . . . . . -53-
SECTION 1306. NO WAIVER OF SUBORDINATION PROVISIONS. . . . . . . . . . . -53-
SECTION 1307. NOTICE TO TRUSTEE. . . . . . . . . . . . . . . . . . . . . -53-
SECTION 1308. RELIANCE ON CERTIFICATE OF LIQUIDATING AGENT. . . . . . . -54-
SECTION 1309. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS. . . . . . . . . . . . . . . . . . . . . . . -54-
SECTION 1310. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS . . . . -54-
SECTION 1311. ARTICLE APPLICABLE TO PAYING AGENT . . . . . . . . . . . . -54-
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES . . . . . . . . . . . . -54-
SECTION 1401. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. . . . . . . . . -54-
SECTION 1402. CALL, NOTICE AND PLACE OF MEETINGS . . . . . . . . . . . . -55-
SECTION 1403. PERSONS ENTITLED TO VOTE AT MEETINGS . . . . . . . . . . . -55-
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SECTION 1404. QUORUM; ACTION . . . . . . . . . . . . . . . . . . . . . . . -55-
SECTION 1405. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS . . . . . . . . . . . . . . . . . . -56-
SECTION 1406. COUNTING VOTES AND RECORDING ACTION OF MEETINGS. . . . . . . -56-
-viii-
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INDENTURE, dated as of between FRUIT OF THE LOOM,
INC., a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its principal office at 5000
Sears Tower, 233 South Wacker Drive, Chicago, Illinois 60606, and
_________________________________, as Trustee (herein called the "Trustee"),
the office of the Trustee at which at the date hereof its corporate trust
business is principally administered being ___________________________________.
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 debentures,
notes or other evidences of indebtedness (herein called the "Securities"), to
be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States, 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 in the United States at the date of such
computation; and
(3) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in Section
102.
"Act", when used with respect to any Holder, has the meaning specified
in Section 105.
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"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person, which may include the
Company, authorized by the Trustee to act on behalf of the Trustee pursuant to
Section 614 to authenticate Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, 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 to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, 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 Controller, an Assistant
Controller, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
_____________ at which at any particular time its corporate trust business
shall be principally administered, which office at the date hereof is that
indicated in the introductory paragraph of this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of a global Security, the Person designated as
Depositary by the Company pursuant to Section 301 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such person,
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"Depositary" as used with respect to the Securities of any series shall mean
the Depositary with respect to the Securities of that series.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Rate" has the meaning specified in Section 501.
"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.
"Indebtedness", as applied to any Person, means all indebtedness,
whether or not represented by bonds, debentures, notes or other securities,
created or assumed by such Person for the repayment of money borrowed, and
obligations, computed in accordance with generally accepted accounting
principles, as lessee under leases that, in accordance with generally accepted
accounting principles, should be recorded as capital leases. All Indebtedness
secured by a lien upon property owned by the Company or any Subsidiary and upon
which Indebtedness such Person customarily pays interest, although such Person
has not assumed or become liable for the payment of such Indebtedness, for all
purposes hereof, shall be deemed to be Indebtedness of such Person. All
Indebtedness of others guaranteed as to payment of principal by such Person or
in effect guaranteed by such Person through a contingent agreement to purchase
such Indebtedness, for all purposes hereof, shall be deemed to be Indebtedness
of such Person. Indebtedness (i) shall not include accounts payable to trade
creditors or other indebtedness for goods or services created or assumed in the
ordinary course of business and (ii) shall include only the principal component
of any obligation described in this definition.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 506.
"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.
"Officer's Certificate" means a certificate signed by the Chairman of
the Board, the Vice Chairman of the Board, the President or a Vice President,
and by the Treasurer, the Controller,
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the Secretary or an Assistant Treasurer, Assistant Controller or Assistant
Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Company.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities previously authenticated and delivered
under this Indenture, except:
(i) Securities previously canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been previously deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the Holders
of such Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to
it that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; and
(iv) Securities with respect to which the Company has effected
defeasance as provided in Article 4, except to the extent provided in Section
401.
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether a
quorum is present at a meeting of Holders of Securities, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the principal amount thereof that would
be due and payable as of the date of such determination upon acceleration of
the Maturity thereof pursuant to Section 502, (b) the principal amount of a
Security denominated in a foreign currency shall be the Dollar equivalent,
determined by the Company on the date of original issuance of such Security, of
the principal amount (or, in the case of an Original Issue Discount Security,
the Dollar equivalent, determined on the date of original issuance of such
Security, of the amount determined as provided in (a) above), of such Security,
(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, and (d) Securities owned by Holders shall be
determined as of the Record Date established pursuant to Section 105, or if not
so established, as of the effectiveness of such request, demand, authorization,
direction, consent, notice or waiver, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities which the Trustee
knows to
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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, which may include the Company,
authorized by the Company to pay the principal of (and premium, if any) or
interest on any one or more series of Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified in
accordance with Section 301 subject to the provisions of Section 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"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 Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 301, or, if not so specified, the last
day of the calendar month preceding such Interest Payment Date if such Interest
Payment Date is the fifteenth day of the calendar month or the fifteenth day of
the calendar month preceding such Interest Payment Date if such Interest
Payment Date is the first day of a calendar month, whether or not such day
shall be a Business Day.
"Required Currency" has the meaning specified in Section 506.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any 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
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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.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means Indebtedness of the Company, whether
currently outstanding or hereafter issued, which is not subordinated by its
terms in right of payment to any other Indebtedness of the Company or otherwise
is senior in right of payment to the Securities; provided that "Senior
Indebtedness" shall not include (i) Indebtedness of the Company to any
Subsidiary for money borrowed or advanced from such Subsidiary or (ii) amounts
owed (except to banks and other financial institutions) for goods, materials or
services purchased in the ordinary course of business.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee pursuant
to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security 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.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905.
"United States" means the United States of America (including the
States and the District of Columbia) and its "possessions", which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"U.S. Government Obligations" has the meaning specified in Section
401.
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"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".
"Wholly Owned Subsidiary" means a corporation all the outstanding
voting stock (other than any directors' qualifying shares) of which is owned,
directly or indirectly, by the Company or by one or more other Wholly Owned
Subsidiaries, or by the Company and one or more other Wholly Owned
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.
"Yield to Maturity", when used with respect to any Original Issue
Discount Security, means the yield to maturity, if any, set forth on the face
thereof.
SECTION 102. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. Whenever this
Indenture refers to a provision of the Trust Indenture Act, the provision is
incorporated by reference in and made a part of this Indenture. The following
Trust Indenture Act terms used in this Indenture have the following meanings:
"Bankruptcy Act" means the Bankruptcy Act or Title 11 of the United
States Code.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All the other Trust Indenture Act terms used in this Indenture that
are defined by the Trust Indenture Act, defined by Trust Indenture Act
reference to another statute or defined by Commission rule under the Trust
Indenture Act and not otherwise defined herein have the meanings assigned to
them therein.
SECTION 103. COMPLIANCE CERTIFICATES AND OPINIONS. Except as otherwise
expressly provided by this Indenture, upon any application or request by the
Company to the Trustee to take any action under any provision of this
Indenture, the Company shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
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(1) a statement that each Person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such Person, such Person
has made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such Person,
such condition or covenant has been complied with.
SECTION 104. 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 stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 105. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person, by an agent duly
appointed in writing or as evidenced by electronic confirmation consistent with
the then existing practices of the Depositary or similar institutions and
participants therein. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments, record or
electric confirmation or each of the foregoing are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments, any such record and any such electronic confirmation (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments or sending
any such electronic confirmation and so voting at any such meeting. Proof of
execution of any such
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instrument or of a writing appointing any such agent or sending any such
electronic confirmation, or the holding of any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be evidenced in the manner provided in Section 1306.
The Company may set a record date for purposes of determining the
identity of Holders of Registered Securities entitled to vote or consent to any
action by vote or consent authorized or permitted under this Indenture, which
record date shall be the later of 30 days prior to the first solicitation of
such consent or the date of the most recent list of Holders furnished to the
Trustee prior to such solicitation. If a record date is fixed, those persons
who were Holders of Registered Securities at such record date (or their duly
designated proxies), and only those persons, shall be entitled to take such
action with respect to such Securities by vote or consent or to revoke any vote
or consent previously given, whether or not such persons continue to be Holders
after such record date.
(b) The fact and date of the execution by any Person of any such
instrument or writing or the delivery of any such electronic confirmation may
be evidenced by the affidavit of a witness of such execution or delivery or by
a certificate of a notary public or other officer authorized by law to take
acknowledgements of deeds, certifying that the individual signing such
instrument or writing or delivering such electronic confirmation acknowledged
to him the execution or delivery thereof. Where such execution or delivery 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 or delivery of any such
instrument, writing or electronic confirmation, or other authority of the
Person executing the same, may also be evidenced in any other manner which the
Trustee deems sufficient.
(c) The principal amount and serial number of Registered Securities
held by any Person, and the date of holding the same, shall be evidenced by the
Security Register.
(d) In determining whether the Holders of the requisite principal
amount of Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver under this Indenture, the principal amount
of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for suchpurposes shall
be equal to the amount of the principal thereof that would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to Section
502 at the time the taking of such action by the Holders of such requisite
principal amount is evidenced to the Trustee for such Securities.
(e) 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. Any consent or waiver of the Holder of any Security shall
be irrevocable for a period of six months after the date of execution thereof,
but otherwise any such Holder or subsequent Holder may revoke the request,
demand, authorization, direction, notice, consent or other Act as to his
Security or portion of his Security. Such revocation shall be effective only
if the Trustee receives the notice of revocation before the date the Act
becomes effective.
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(f) Until an amendment or waiver becomes effective, a consent to it
by a Holder of a Security is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security, even if notation of the consent
is not made on any Security.
(g) Without limiting the foregoing, a Holder entitled hereunder to
give or take any such action 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 discrete part of such principal amount.
Any amendment or waiver once effective shall bind every Holder of each
series affected by such amendment or waiver unless it is of the type described
in Section 902. In that case, the amendment or waiver shall bind each Holder
of a Security who has consented to it and every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the consenting
Holder's Security.
SECTION 106. NOTICES, ETC., TO TRUSTEE AND COMPANY. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with (1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: __________________, or (2) the Company by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
the Company addressed to it at the address of its principal office specified in
the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company, Attention: President, or
to any other address furnished in writing to the Trustee by the Company.
SECTION 107. NOTICE TO HOLDERS; WAIVER. Where this Indenture provides for
notice to Holders of Securities of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at the address of such Holder as it appears in
the Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service, or by
reason of any other cause it shall be impractical 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 any other Holders of Registered Securities.
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. Waiver of notice by Holders shall be filed with
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the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT. If any provision hereof
limits, qualifies or conflicts with any provision of the Trust Indenture Act or
another provision hereof which is required to be included in this Indenture by
any of the provisions of the Trust Indenture Act, such provision of the Trust
Indenture Act shall control.
SECTION 109. 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 110. 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 111. 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 112. BENEFITS OF INDENTURE. Nothing in this Indenture or in the
Securities, expressed or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders and holders of
any Senior Indebtedness, any benefit or any legal or equitable rights, remedy
or claim under this Indenture.
SECTION 113. GOVERNING LAWS. This Indenture and the Securities shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 114. LEGAL HOLIDAYS. In the 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 provisions of this
Indenture or of the Securities) payment of interest or principal (and premium,
if any) need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity, provided that no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be.
SECTION 115. CORPORATE OBLIGATION. No recourse may be taken, directly or
indirectly, against any incorporator, subscriber to the capital stock,
stockholder, officer, director or employee of the Company or the Trustee or of
any predecessor or successor of the Company or the Trustee with respect to the
Company's obligations on the Securities or the obligations of the Company or
the Trustee under this Indenture or any certificate or other writing delivered
in connection herewith.
SECTION 116. COUNTERPARTS. This Indenture may be executed any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts together shall constitute one and the same instrument.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY. The Registered Securities, if any, of each
series shall be in substantially such form or forms (including temporary or
permanent global form) as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have such letters, numbers
or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. If temporary
Securities of any series are issued in global form as permitted by Section 304,
the form thereof shall be established as provided in the preceding sentence. A
copy of the Board Resolution establishing the form or forms of Securities of
any series (or any such temporary global Security) shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 303
for the authentication and delivery of such Securities (or any such temporary
global Security).
The definitive Securities 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 thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The Trustee's
certificate of authentication shall be in substantially the following form:
"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
_____________________________________
as Trustee
By___________________________________
Authorized Signatory."
SECTION 203. SECURITIES IN GLOBAL FORM.
(a) A supplemental indenture to the Indenture or a Board Resolution
(and, to the extent not set forth in the Board Resolution, an Officer's
Certificate detailing the adoption of terms pursuant to the Board Resolution)
shall establish whether the Securities of a series shall be issued in whole or
in part in the form of one or more global securities and the Depositary for
such global security or securities.
(b) Notwithstanding any provisions to the contrary contained in
Section 305 of the Indenture and in addition thereto, any global security shall
be exchangeable pursuant to Section 305 of the Indenture for securities
registered in the names of Holders other than the Depositary for such Security
or its nominee only if (i) such Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for such global security or if at
any time such
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Depositary ceases to be a clearing agency registered under the Exchange Act,
and, in either case, the Company fails to appoint a successor Depositary within
90 days of such event, (ii) the Company executes and delivers to the Trustee an
Officer's Certificate to the effect that such global security shall be so
exchangeable or (iii) an event shall have happened and be continuing which is
or after notice or lapse of time or both, would be, an Event of Default with
respect to the Securities represented by such global security. Any global
security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Securities registered in such names as the Depositary shall
direct in writing in an aggregate principal amount equal to the principal
amount of the global security with like tenor and terms.
Except as provided in this Section 203, a global security may not be
transferred except as a whole by the Depositary with respect to such global
security to a nominee of such Depositary, by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such a successor
Depositary.
(c) Any global security issued 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 the
Depositary or a nominee of the Depositary. This Security is exchangeable for
Securities registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Indenture, and may
not be transferred except as a whole by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or another nominee
of the Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such a successor Depositary."
(d) The Depositary, as a Holder, may appoint agents and otherwise
authorize Persons that have accounts with the Depositary to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action which a Holder is entitled to give or take under the Indenture.
(e) Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 301, payment of the principal of
and interest on any global security shall be made to the person specified
therein.
(f) Except as provided in Subsection (e) above, the Company, the
Trustee and any Agent shall treat a person as the Holder of such principal
amount of outstanding Securities of such series represented by a global
security as shall be specified in a written statement of the Depositary with
respect to such global security, for purposes of obtaining any consents,
declarations or directions required to be given by the Holders pursuant to this
Indenture.
SECTION 204. CUSIP NUMBERS The Company in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
elements of identification printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers.
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ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officer's
Certificate, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Section 304, 305, 306, 906 or 1107);
(3) whether Securities of the series are to be issuable as Registered
Securities, 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 and, if so, whether beneficial owners of
interests in any such permanent global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may occur, if
other than in the manner provided in Section 305, and the Depositary for any
global Security or Securities;
(4) the manner in which, or the extent to 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 304;
(5) the date or dates on which the principal (and premium, if any) of
the Securities of the series is payable or the method of determination thereof,
including, without limitation, the maturity date or dates;
(6) the rate or rates (which may be fixed or variable or based upon
such indices as the Company may elect), or the method of determination thereof,
at which the Securities of the series shall bear interest, if any, the date or
dates from which such interest shall accrue, the Interest Payment Dates on
which such interest shall be payable and, if other than as set forth in Section
101, the Regular Record Date for the interest payable on any Registered
Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions of Section
1002, the principal of (and premium, if any) and interest, if any, on the
Securities of the series shall be payable;
(8) 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, if the Company is
to have that option;
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(9) 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;
(10) the denomination in which any Registered Securities of that
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof;
(11) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(12) any additional means of satisfaction and discharge of this
Indenture with respect to Securities of the series pursuant to Section 401, any
additional conditions to discharge pursuant to Section 401 or 403 and the
application, if any, of Section 403;
(13) any deletions or modifications of or additions to the Events of
Default set forth in Section 501 or covenants of the Company set forth in
Article Ten pertaining to the Securities of the series;
(14) the terms for conversion or exchange, if any;
(15) whether the Securities wll be secured or unsecured and, if
secured, the nature and terms of the security;
(16) if other than Dollars, the currency, currencies or currency unit
or units in which such Securities will be denominated and in which the
principal of, and premium and interest, if any, thereon will be payable;
(17) whether, and the terms and conditions on which, the Company or a
Holder may elect that, or the other circumstances under which, payment of
principal of, or premium or interest, if any, is to be made in a currency or
currencies or currency unit or units other than that in which such Securities
are denominated;
(18) if the payments of principal of or interest on the Securities of
a series are to be made in a foreign currency other than the currency in which
such Securities are denominated, the manner in which the exchange rate with
respect to such payments shall be determined;
(19) if the amount of payments of principal of or interest on the
Securities of a series may be determined with reference to an index based on a
currency or currencies other than that in which the Securities are denominated
or designated to be payable or determined by reference to a commodity,
commodity index, stock exchange index or financial index, the manner in which
such amounts shall be determined;
(20) provisions, if any, granting special rights to the holders of
Securities of a series upon the occurrence of such events as may be specified
and the provisions, if any, relating to the subordination of the Securities of
such series to other obligations of the Company;
(21) any provision for the conversion or exchange of Securities of a
series, either at the option of the Holder thereof or the Company, into or for
another security or securities of the Company, the security or securities into
or for which, the period or periods within which, the price or prices,
including any adjustments thereto, at which and the other terms and conditions
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upon which any Securities of such series shall be converted or exchanged, in
whole or in part;
(22) if the Securities of a series are to be issued upon the exercise
of warrants, the time, manner and place for such Securities to be authenticated
and delivered;
(23) the provisions, if any, relating to any security provided for
the Securities of any series;
(24) any addition to or change in the Events of Default which applies
to any Securities of a series and any change in the right of the Trustee or the
requisite Holders of such Securities to declare the principal amount thereof
due and payable pursuant to Section 502;
(25) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of such series;
(26) any depositories, interest rate calculation agents, exchange
rate agents or other agents with respect to Securities of such series if other
than those appointed herein; and
(27) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except, in the case of Registered Securities, as to denomination and except as
may otherwise be provided in or pursuant to the Board Resolution referred to
above and (subject to Section 303) set forth, or determined in the manner
provided, in the Officer's Certificate referred to above or in any such
indenture supplemental hereto.
At the option of the Company, interest on the Securities of any series
that bears interest may be paid by mailing a check to the address of any Holder
as such address shall appear in the Securities Register.
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
together with such Board Resolution 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 Officer's Certificate setting forth the terms of the
series.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Thirteen.
SECTION 302. DENOMINATIONS. The Securities of each series shall be issuable
in such denominations as shall be specified and/or contemplated by Section 301.
In the absence of any such provisions with respect to the Securities of any
series, the Registered Securities of such series denominated in Dollars shall
be issuable in denominations of $1,000 and any integral multiple thereof.
Unless otherwise provided as contemplated by Section 301 with respect to any
series of Securities, any Securities of a series denominated in a currency
other than Dollars shall be issuable in denominations that are the equivalent,
as determined by the Company by reference to the noon buying rate in The City
of New York for cable transfers for such currency, as such
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rate is reported or otherwise made available by the Federal Reserve Bank of New
York, on the applicable issue date for such Securities, of $1,000 and any
integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The Securities
shall be executed on behalf of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its President, its Treasurer or one of its Vice
Presidents, under its corporate seal reproduced thereon or affixed thereto
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.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver to the Trustee for authentication
Securities of any series executed by the Company, 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. If provided for in
such procedures, such Company Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company or its duly
authorized agent or agents, which oral instructions shall be confirmed promptly
in writing.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such form has
been established in accordance with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms have
been established in accordance 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 legal, valid and binding
obligations of the Company, enforceable in accordance with their terms, except
as such enforcement is subject to the effect of (i) bankruptcy, insolvency,
reorganization or other law relating to or affecting creditors' rights and (ii)
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
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.
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Each Registered Security shall be dated the date of its
authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security, a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, 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
309 together with a written statement (which need not comply with Section 103
and need not be accompanied by an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. TEMPORARY SECURITIES. Pending the preparation of definitive
Securities of any series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, 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, 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.
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 a like principal amount of
definitive Securities of the same series of authorized denominations. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
Any temporary global Security and any permanent global security shall,
unless otherwise provided therein, be delivered to the Depositary for credit to
the respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security 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 Security, executed by
the Company. On or after the Exchange Date such temporary global Security
shall be surrendered by the 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
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 Security to be exchanged. The definitive Securities to
be delivered in exchange for any such temporary
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global Security shall be in registered form, or permanent global registered
form, or any combination thereof, as specified and/or contemplated by Section
301, and if any combination thereof is so specified, as requested by the
beneficial owner thereof.
Unless otherwise specified in the temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged on 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 and after the Exchange Date, the interest of a beneficial owner of
Securities of a series in a temporary global Security shall be exchanged 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. Unless otherwise specified in such temporary
global Security, any exchange shall be made free of charge to the beneficial
owners of such temporary global Security, except that a Person receiving
definitive Securities must bear the cost of insurance, postage, transportation
and the like in the event that such Person does not take delivery of such
definitive Securities in person at the offices of the Depositary.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified and/or contemplated by Section 301, interest payable on a temporary
global Security on an Interest Payment Date for Securities of such series shall
be payable to the Depositary on such Interest Payment Date, for credit without
further interest on or after such Interest Payment Date to the respective
accounts of the Persons who are the beneficial owners of such temporary global
Security on such Interest Payment Date. Any interest so received by the
Depositary 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 1003.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. The Company
shall cause to be kept for each series of Securities at one of the offices or
agencies maintained pursuant to Section 1002 a register (the register
maintained in such office and in any other office or agency of the Company in a
Place of Payment herein referred to collectively as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Registered Securities and of transfers of
Registered Securities of such series. The Trustee is hereby initially
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any 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 and of like tenor, of any authorized
denominations and of a like aggregate principal amount.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series and of like
tenor, of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
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shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified and/or
contemplated by Sections 203 or 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a permanent global Security are entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified and/or contemplated by Sections
203 or 301, then without unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged, the Company shall
deliver to the Trustee definitive Securities of that series in an aggregate
principal amount equal to the principal amount of such permanent global
Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such permanent global Security shall be
surrendered from time to time in accordance with instructions given to the
Trustee (which instructions shall be in writing but need not comply with
Section 103 or be accompanied an Opinion of Counsel) by the Depositary or such
other depositary as shall be specified in the Company Order with respect
thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities of the same series
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such permanent global Security, a like aggregate principal
amount of other definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such permanent global
Security to be exchanged, which Securities shall be in the form of Registered
Securities; provided, however, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of Securities
of that series is to be redeemed and ending on the relevant Redemption Date.
Promptly following any such exchange in part, such permanent global Security
shall be returned by the Trustee to the Depositary or such other depositary
referred to above in accordance with the instructions of the Company referred
to above. If a Registered Security is issued in exchange for any portion of a
permanent global Security after the close of business at the office or agency
where such exchange occurs on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of Defaulted
Interest, interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
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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
exchange pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of such series selected for redemption and ending at
the close of business on the day of the mailing of the relevant notice of
redemption or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. If any
mutilated Security is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fee and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. 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
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Securities) is registered at the close of business on the Regular Record Date
for such interest. Unless otherwise provided with respect to the Securities of
any series, payment of interest may be made at the option of the Company 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.
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 (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Registered Security of such series and the date of the proposed payment,
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 provided in this Clause (1). 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 (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this Clause (2), 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, in exchange
for or in lieu of, any other Security, shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
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SECTION 308. PERSONS DEEMED OWNERS. Prior to due presentment of a 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 premium, if any) and
(subject to Sections 305 and 307) interest on such Registered Security and for
all other purposes whatsoever, whether or not such Security is 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 309. CANCELLATION. All Securities surrendered for payment,
redemption, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee. All Registered Securities so delivered
shall be promptly canceled by the Trustee. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall
be disposed of as directed by a Company Order.
Any temporary global Security shall be disposed of if the entire
aggregate principal amount of the Securities represented thereby has been
exchanged. Permanent global Securities shall not be disposed of until
exchanged in full for definitive Securities or until payment thereon is made in
full.
SECTION 310. COMPUTATION OF INTEREST. Except as otherwise specified and/or
contemplated by Section 301 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a year of twelve
30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture shall
upon Company Request cease to be of further effect with respect to Securities
of a series, and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to Securities of such series, when
(1) either
(A) all Securities of such series previously authenticated
and delivered (other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has previously been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) with respect to all Outstanding Securities of such series
not previously delivered to the Trustee for cancellation, the Company has
deposited or caused to be deposited with the Trustee as trust funds, under the
terms of an irrevocable trust agreement in form and
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substance satisfactory to the Trustee, for that purpose money or U.S.
Government Obligations maturing as to principal and interest in such amounts
and at such times as will, together with the income to accrue thereon, without
consideration of any reinvestment thereof, be sufficient to pay and discharge
the entire indebtedness on all Outstanding Securities of such series not
previously delivered to the Trustee for cancellation for principal (and
premium, if any) and interest to the Stated Maturity or any Redemption Date
contemplated by the penultimate paragraph of this Section, as the case may be;
or
(C) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section 301, to
be applicable to the Securities of such series;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Outstanding Securities of such
series;
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities of such
series pursuant to this Section 401; and
(4) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture with
respect to the Outstanding Securities of such series have been complied with.
For the purposes of this Indenture, "U.S. Government Obligations"
means direct non-callable obligations of, or non-callable obligations the
payment of principal of and interest on which is guaranteed by, the United
States of America, or to the payment of which obligations or guarantees the
full faith and credit of the United States of America is pledged, or beneficial
interests in a trust the corpus of which consists exclusively of money or such
obligations or a combination thereof.
If any Outstanding Securities of such series are to be redeemed prior
to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory sinking fund requirement, the
trust agreement shall provide therefor and the Company shall make such
arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Outstanding Securities of such series pursuant to this Section
401, the obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section 614 and,
except for a discharge pursuant to subclause (A) of clause (1) of this Section,
the obligations of the Company under Sections 305, 306, 404, 1001 and 1002 and
the obligations of the Trustee under Section 402 and the last paragraph of
Section 1003, shall survive.
SECTION 402. APPLICATION OF TRUST MONEY. Subject to the provisions of the
last paragraph of Section 1003, all money deposited with the Trustee pursuant
to Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the
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principal (and premium, if any) and interest for whose payment such money has
been deposited with the Trustee.
SECTION 403. DISCHARGE OF LIABILITY ON SECURITIES OF ANY SERIES. If this
Section is specified, as contemplated by Section 301, to be applicable to
Securities of any series, the Company shall be deemed to have paid and
discharged the entire indebtedness on all the Outstanding Securities of such
series, the obligation of the Company under this Indenture and the Securities
of such series, to pay the principal of (and premium, if any) and interest on
Securities of such series, shall cease, terminate and be completely discharged
and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging such satisfaction and discharge, when
(1) the Company has complied with the provisions of Section 401 of
this Indenture (other than any additional conditions specified pursuant to
Sections 301 and 401(3)) with respect to all Outstanding Securities of such
series;
(2) the Company has delivered to the Trustee a Company Request
requesting such satisfaction and discharge;
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities of such
series pursuant to this Section 403; and
(4) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the discharge of the indebtedness on the Outstanding
Securities of such series have been complied with.
Upon the satisfaction of the conditions set forth in this Section with
respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that, the Company shall not be discharged
from any payment obligations in respect of Securities of such series which are
deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law or pursuant to Section 305 or 306.
SECTION 404. REINSTATEMENT. If the Trustee or Paying Agent is unable to apply
any money or U.S. Government Obligations deposited with respect to Securities
of any series in accordance with Section 401 by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture with respect to the Securities of such series
and the Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 401 until such time as the Trustee or
Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 401; provided, however, that if the
Company has made any payment of principal of (or premium, if any) or interest
on any Securities because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money or U.S. Government Obligations held by the Trustee
or Paying Agent.
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ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT. "Event of Default", wherever used herein with
respect to Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless it is either inapplicable to a
particular series or it is specifically deleted or modified in or pursuant to
the supplemental indenture or Board Resolution establishing such series of
Securities or in the form of Security for such series:
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuation of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series, and continuation of such default
for a period of 60 days; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is specifically dealt with
elsewhere in this Section or which has expressly been included in this
Indenture solely for the benefit of one or more series of Securities other than
that series), and continuation of such default or breach for a period of 90
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of all Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(5) the 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 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 continuation of
any such decree or order for relief or any such other decree or order remains
unstayed and in effect for a period of 90 consecutive days; or
(6) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it, of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the
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appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or 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
(7) any other Event of Default provided with respect to Securities of
that series.
Notwithstanding the foregoing provisions of this Section 501, if the
principal of (and premium, if any) or any interest on any Security is payable
in a currency or currencies (including a composite currency) other than Dollars
and such currency (or currencies) is (or are) not available to the Company for
making payment thereof due to the imposition of exchange controls or other
circumstances beyond the control of the Company, the Company will be entitled
to satisfy its obligations to Holders of such Securities by making such payment
in Dollars in an amount equal to the Dollar equivalent of the amount payable in
such other currency, as determined by the Trustee by reference to the noon
buying rate in The City of New York for cable transfers for such currency
("Exchange Rate"), as such Exchange Rate is reported or otherwise made
available by the Federal Reserve Bank of New York on the date of such payment,
or, if such rate is not then available, on the basis of the most recently
available Exchange Rate. Notwithstanding the foregoing provisions of this
Section 501, any payment made under such circumstances in Dollars where the
required payment is in a currency other than Dollars will not constitute an
Event of Default under this Indenture.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an Event
of Default with respect to any 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 (i) the
series affected by such default (in the case of an Event of Default described
in clause (1), (2), (3) or (7) of Section 501) or (ii) all series of Securities
(in the case of other Events of Default) may declare the principal amount (or,
if any such Securities are Original Issue Discount Securities, such portion of
the principal amount as may be specified in the terms of that series) and any
accrued but unpaid interest thereon of all of the Securities of the series
affected by such default or all series, as the case may be, 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) and any accrued but unpaid interest thereon shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) 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 (or
of all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series (or
of all series, as the case may be),
(B) the principal of (and premium, if any, on) any Securities
of that series (or of all series, as the case may be) which have become due
otherwise than by such declaration of
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acceleration and interest thereon at the rate or rates prescribed therefor in
such Securities (in the case of Original Issue Discount Securities, the
Securities' Yield to Maturity),
(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 (in the case of Original Issue Discount Securities, the Securities'
Yield to Maturity), and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series
(or of all series, as the case may be), other than the non-payment of the
principal of Securities of that series (or of all series, as the case may be)
which has become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if default is made in the payment of (1) any
installment of interest on any Security of any series when such interest
becomes due and payable and such default continues for a period of 30 days, or
(2) 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, the whole amount then due and
payable on such Securities for principal (and premium, if any) and interest
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue
interest, at the rate or rates prescribed therefor in such Securities (or in
the case of Original Issue Discount Securities, the Securities' Yield to
Maturity), and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
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SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to the Company or
any other obligor upon the Securities or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal (or lesser amount in the case of Original Issue Discount Securities)
of the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(i) to file and prove a claim for the whole amount of principal (or
lesser amount in the case of Original Issue Discount Securities) (and premium,
if any) and interest owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceedings.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES. All
rights of action and claim under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
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SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal (and premium, if any) and interest,
respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
To the fullest extent allowed under applicable law, if for the purpose
of obtaining judgment against the Company in any court it is necessary to
convert the sum due in respect of the principal of (or premium, if any) or
interest on the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Business Day next
preceding that on which final judgment is given. Neither the Company nor the
Trustee shall be liable for any shortfall nor shall it benefit from any
windfall in payments to Holders of Securities under this Section caused by a
change in exchange rates between the time the amount of a judgment against it
is calculated as above and the time the Trustee converts the Judgment Currency
into the Required Currency to make payments under this Section to Holders of
Securities, but payment of such judgment shall discharge all amounts owed by
the Company on the claim or claims underlying such judgment.
SECTION 507. LIMITATION ON SUITS. No Holder of any Security of any series
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) an Event of Default with respect to Securities of such series
shall have occurred and be continuing and such Holder has previously given
written notice to the Trustee of such continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this
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Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST. Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any Holder
has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding has been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Holder of any Securities to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. CONTROL BY HOLDERS. With respect to Securities of any series,
the Holders of a majority in principal amount of the Outstanding Securities of
such series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, relating to or arising
under an Event of Default described in clause (1), (2), (3) or (7) of Section
501, and with respect to all Securities the Holders of a majority in principal
amount of all Outstanding Securities shall have the right to direct the time,
method and place of conducting any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, not relating to or
arising under such an Event of Default, provided that in each such case (1)
such direction shall not be in conflict with any rule of law or with this
Indenture, and (2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
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SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of 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 relating to or arising under an Event of Default
described in clause (3) or (7) of Section 501 and its consequences, and the
Holders of a majority in principal amount of all Outstanding Securities may on
behalf of the Holders of all Securities waive any other past default hereunder
and its consequences, except in each case a default (1) in the payment of the
principal (or premium, if any) or interest on any Security, or (2) in respect
of a covenant or provision hereof which under Article Nine cannot be modified
or amended without the consent of the Holder of each Outstanding Security
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 514. UNDERTAKING FOR COSTS. All parties to this Indenture agree, and
each Holder of any Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Company, to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest on any Security on
or after the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS. The Company covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuation of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and
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(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case
of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proven that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the Outstanding
Securities of any series or of all series, determined as provided in Section
512, relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Securities of such
series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 602. NOTICE OF DEFAULTS. Within 90 days after the occurrence of any
default hereunder with respect to the Securities of any series, the Trustee
shall transmit by mail to all Holders of Securities of such series, as their
names and addresses appear in the Security Register, notice of such default
hereunder known to the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of (or premium, if any) or interest on any Security of such
series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the best interest of
the Holders
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of Securities of such series. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of Section
601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, 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 may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proven or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
shall be prescribed specifically herein) may, in the absence of bad faith on
its part, rely upon an Officer's 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 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. The
recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Company, and the Trustee 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 shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
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SECTION 605. MAY HOLD SECURITIES. The Trustee, any Authenticating Agent, any
Paying Agent, any Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 608 and 613, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT. The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of, or premium, if any, or interest,
if any, on, particular Securities.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, with respect to the Securities of any series, it
shall, within 90 days after ascertaining that it has such conflicting interest,
either eliminate such conflicting interest or resign with respect to the
Securities of that series in the manner and with the effect hereinafter
specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the Securities of
any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit by mail to all Holders of Securities of that series, as
their names and addresses appear in the Security Register, notice of such
failure.
(c) For the purposes of this Section, the term "conflicting interest"
shall have the meaning specified in Section 310(b) of the Trust Indenture Act
and the Trustee shall comply with Section 310(b) of the Trust Indenture Act;
provided, that there shall be excluded from the operation of Section 310(b) of
the Trust Indenture Act with respect to the Securities of any series
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this Indenture, and any other indenture or indentures under which other
securities, or certificates of interest or participation in other securities,
of the Company are outstanding, if the requirements for such exclusion set
forth in Section 310(b)(1) of the Trust Indenture Act are met. For purposes of
the preceding sentence, the optional provision permitted by the second sentence
of Section 310(b)(9) of the Trust Indenture Act shall be applicable.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall at all
times be a Trustee hereunder which shall 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 exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of such supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the resigning Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time (1) the Trustee shall fail to comply with Section
608(a) after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or (2) the
Trustee shall cease to be eligible under Section 609 and shall fail to resign
after written request therefor by the Company or by any such Holder of
Securities, or (3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (i) the Company by a Board
Resolution may remove the Trustee with respect to all Securities, or (ii)
subject to Section 514, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
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(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and such successor
Trustee or Trustees shall comply with the applicable requirements of Section
611. If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series delivered to
the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid,
to all Holders of Securities of such series as their names and addresses appear
in the Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm
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that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of
the same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS. Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, 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 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The Trustee
shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship described in Section 311(b) of the Trust Indenture Act.
A Trustee who has resigned or been removed shall be subject to Section 311(a)
of the Trust Indenture Act to the extent indicated therein.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT. The Trustee may appoint an
Authenticating Agent or Agents which shall be authorized to act on behalf of
the Trustee to authenticate Securities issued upon original issue and upon
exchange, registration of transfer or partial redemption or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of
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authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall
at all times be a corporation organized and doing business under the laws of
the United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 or equivalent amount expressed
in a foreign currency and subject to supervision or examination by Federal or
State authority or authority of such other country. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of such 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 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 607.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
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"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
__________________________
__________________________
As Trustee
By ____________________________________
As Authenticating Agent
By ____________________________________
Authorized Signatory"
Notwithstanding any provision of this Section 614 to the contrary, if
at any time any Authenticating Agent appointed hereunder with respect to any
series of Securities shall not also be acting as the Security Registrar
hereunder with respect to any series of Securities, then, in addition to all
other duties of an Authenticating Agent hereunder, such Authenticating Agent
shall also be obligated: (i) to furnish to the Security Registrar promptly all
information necessary to enable the Security Registrar to maintain at all times
an accurate and current Security Register and (ii) prior to authenticating any
Security denominated in a foreign currency, to ascertain from the Company the
units of such foreign currency that are required to be determined by the
Company pursuant to Section 302.
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE WITH NAMES AND ADDRESSES OF HOLDERS.
With respect to each series of Securities, 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 relating to that series (or, if there is no Regular Record Date relating
to that series, on January 1 and July 1), a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of that
series as of such dates, 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, such list to be dated 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, if so acting.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of each series contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders of each series received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy any list furnished to
it as provided in Section 701 upon receipt of a new list so furnished.
(b) Holders of Securities may communicate pursuant to Section 312(b)
of the Trust Indenture Act with other Holders with respect to their rights
under this Indenture or under the Securities.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 702(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 702(b).
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the
first May following the first date of issuance of Securities under this
Indenture, the Trustee shall transmit by mail to Holders a brief report dated
as of such May 15 that complies with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) of the Trust
Indenture Act.
(c) Reports pursuant to this Section shall be transmitted by mail:
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(1) to all Holders of Registered Securities, as the names and
addresses of such Holders appear in the Security Register; and
(2) except in the case of reports pursuant to Subsection (b)
of this Section, to each Holder of a Security whose name and address is
preserved at the time by the Trustee, as provided in Section 702(a).
(d) A copy of each report pursuant to Subsection (a) or (b) of this
Section 703 shall, at the time of its transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with the
Commission and with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
SECTION 704. REPORTS BY COMPANY. The Company shall file with the Trustee,
within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended, and shall
otherwise comply with Section 314(a) of the Trust Indenture Act.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. The
Company shall not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, unless:
(1) the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company substantially as an entirety
shall be a corporation, partnership, limited liability company or trust, shall
be organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
(and premium, if any) and interest on all the Securities and the performance of
every covenant of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture, comply with this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
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SECTION 802. SUCCESSOR PERSON SUBSTITUTED. Upon any consolidation by the
Company with or merger by the Company into any other Person or any conveyance,
transfer or lease of the properties and assets of the Company substantially as
an entirety in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of such lease, the predecessor Person shall
be relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. Without the
consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein and
in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to all or
any series of the Securities (and, if such Event of Default is applicable to
less than all series of Securities, specifying the series to which such Event
of Default is applicable); or
(4) to permit or facilitate the issuance of Securities in
uncertificated form, provided that any such action shall not adversely affect
the interests of the Holders of Securities of any series in any material
respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution
of such supplemental indenture which is adversely affected by such change in or
elimination of such provision; or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(7) 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
611(b); or
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(8) 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 such other provisions as may be made shall not
adversely affect the interests of the Holders of Securities of any series in
any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
consent of the Holders of a majority in principal amount of the Outstanding
Securities of all series affected by such supplemental indenture (acting as one
class), by Act of such Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502, or
change any Place of Payment where, or the coin or currency or currencies
(including composite currencies) in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of Outstanding
Securities, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide with respect
to any particular series the right to condition the effectiveness of any
supplemental indenture as to that series on the consent of the Holders of a
specified percentage of the aggregate principal amount of Outstanding
Securities of such series (which provision may be made pursuant to Section 301
without the consent of any Holder) 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 1008, or the deletion of this proviso, in
accordance with the requirements of Sections 611(b) and 901(7).
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
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respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or accepting
the additional trusts created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture 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,
immunities or liabilities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities previously or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements
of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES. Securities
of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The Company
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of (and premium, if any) and interest on
the Securities of that series in accordance with the terms of the Securities
and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. 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. 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
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any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its office or agency to receive such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST. If the
Company shall at any time act as its own Paying Agent with respect to any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, the Company will, on or before each due date of the
principal of (and premium, if any) or interest on any Securities of that
series, deposit with a Paying Agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any payment
of principal (and premium, if any) or interest on the Securities of that
series; and
(3) at any time during the continuation of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which sums were held by the Company
or such Paying Agent; and, upon such payment by any Paying Agent to
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the Trustee, such Paying Agent shall be released from all further liability
with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for
three years after such principal (and premium, if any) or interest has become
due and payable shall, unless otherwise required by mandatory provisions of
applicable escheat, or abandoned or unclaimed property law, be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in the Borough of Manhattan, The City of New York, notice that such money
remains unclaimed and that, after a date specified herein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will, unless otherwise required by mandatory
provisions of applicable escheat, or abandoned or unclaimed property law, be
repaid to the Company.
SECTION 1004. EXISTENCE. Subject to Article Eight, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence.
SECTION 1005. MAINTENANCE OF PROPERTIES. The Company will cause all
properties used or useful in the conduct of its business 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 that Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 1006. PAYMENT OF TAXES AND OTHER CLAIMS. The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all material 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 material 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 1007. 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 so long as any Security is outstanding
hereunder, an Officers' Certificate, stating that a review of the activities of
the Company during such year and of performance under this Indenture has been
made under the supervision of the signers thereof and whether or not to the
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best of their knowledge the Company is in default in the fulfillment of any of
its obligations under this Indenture, and if the Company shall be in default,
specifying each such default known to them and the nature and status thereof.
SECTION 1008. WAIVER OF CERTAIN COVENANTS. The Company may omit in any
particular instance to comply with any covenant or condition set forth in
Sections 1004 to 1006, inclusive, or any covenant added for the benefit of any
series of Securities as contemplated by Section 301 (unless otherwise specified
pursuant to Section 301) if before or after the time for such compliance the
Holders of a majority in principal amount of the Outstanding Securities of all
series affected by such omission (acting as one class) shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant 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 covenant or condition
shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE. Securities of any series which are
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified and/or contemplated by Section
301 for Securities of any series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of the
Company to redeem any Securities shall be evidenced by 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 and of
the principal amount of Securities of such series to be redeemed. In the case
of any redemption of Securities prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officer's Certificate
evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. If less than
all the Securities of any series are to be redeemed (other than pursuant to
Section 1108), 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 of the principal amount of
Registered Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series or of the principal
amount of global Securities of such series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
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For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION. Notice of redemption shall be given by
first-class mail, postage prepaid, mailed not less than 30 or more than 60 days
prior to the Redemption Date, to each Holder of Securities to be redeemed, at
his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after such date (or in the event
of a redemption pursuant to Section 1108, and if applicable, a statement that
no interest is payable with respect to such security),
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. On or before any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company shall default in
the payment of the Redemption Price and accrued interest) such Securities shall
cease to bear interest. Upon surrender of any such Security for redemption in
accordance with such notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that 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
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such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security or, in the case of Original Issue Discount Securities,
the Securities' Yield to Maturity.
SECTION 1107. 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 Stated Maturity, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE. The provisions of this Article shall
be applicable to any sinking fund for the retirement of Securities of a series
except as otherwise specified and/or contemplated by Section 301 for Securities
of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". Unless otherwise provided by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES. The
Company (1) may deliver Outstanding Securities of a series (other than any
previously called for redemption), and (2) may apply as a credit Securities of
a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking payment shall be
reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND. Not less than 60
days prior to each sinking fund payment date for any series of Securities, the
Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be
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satisfied by delivery of or by crediting Securities of that series pursuant to
Section 1202 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 1103 and cause notice of the
redemption thereof to be given in the name and at the expense of the Company in
the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS. The Company
covenants and agrees, and each Holder of a Security, by his acceptance thereof,
whether upon original issue or upon transfer or assignment, likewise covenants
and agrees, that, to the extent and in the manner hereinafter set forth, the
payment of the principal of (and premium, if any) and interest on each and all
of the Securities is hereby expressly made subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness.
SECTION 1302. CIRCUMSTANCES REQUIRING PRIOR PAYMENT OF SENIOR INDEBTEDNESS.
In the event of any dissolution or winding up or total or partial liquidation
or reorganization of the Company, whether in bankruptcy, reorganization,
insolvency, receivership or similar proceeding, then 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 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.
Unless otherwise provided in Section 301, no payment in respect of
Securities shall be made if, at the time of such payment, there exists a
default in payment of all or any portion of any Senior Indebtedness, and such
default shall not have been cured or waived in writing or the benefits of this
sentence waived in writing by or on behalf of the holders of such Senior
Indebtedness. In addition, unless otherwise provided in Section 301, during
the continuation of any event of default (other than a default referred to in
the immediately preceding sentence) with respect to any Senior Indebtedness
permitting the holders to accelerate the maturity thereof and upon written
notice thereof given to the Trustee, with a copy to the Company (the delivery
of which shall not affect the validity of the notice to the Trustee), by any
holder of such Senior Indebtedness or its representative, then, unless and
until such an event of default shall have been cured or waived or shall have
ceased to exist, no payment shall be made by the Company with respect to the
principal of or interest on the Securities or to acquire any of the Securities
or on account of the redemption provisions for the Securities; provided,
however, that if the holders of the Senior Indebtedness to which the default
relates have not declared such Senior Indebtedness to be immediately due and
payable within 180 days after the occurrence of such default (or have declared
such Senior Indebtedness to be immediately due and payable and within such
period have rescinded such declaration of acceleration), then the Company shall
resume making any and all required payments in respect of the Securities
(including any missed payments). Only one payment blockage period under the
immediately preceding sentence may be commenced within any consecutive 365-day
period with respect to the Securities. No event of default which existed or
was continuing on the date of the commencement of any 180-day payment blockage
period with respect to the Senior Indebtedness initiating such payment
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blockage period shall be, or be made, the basis for the commencement of a
second payment blockage period by a Holder or representative of such Senior
Indebtedness whether or not within a period of 365 consecutive days unless such
event of default shall have been cured or waived for a period of not less than
90 consecutive days (and, in the case of any such waiver, no payment shall be
made by the Company to the holders of Senior Indebtedness in connection with
such waiver other than amounts due pursuant to the terms of the Senior
Indebtedness as in effect at the time of such default).
In the event that, notwithstanding the foregoing, the Trustee or the
Holder of any Security shall have received any payment or distribution 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 then 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, agent or other Person making 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.
Nothing in this Section shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
In addition, nothing in this Section shall prevent the Company from
making or the Trustee from receiving or applying any payment in connection with
the redemption of Securities if the first publication of notice of such
redemption (whether by mail or otherwise in accordance with this Indenture) has
been made, and the Trustee has received such payment from the Company, prior to
the occurrence of any of the contingencies specified in the first two
paragraphs of this Section.
SECTION 1303. 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 (to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of
this Article) to the rights of the holders of such Senior Indebtedness to
receive payments or distributions from the Company 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 to which
the holders of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments pursuant to the provisions of this
Article to the holders of Senior Indebtedness by Holders of the Securities or
the Trustee, shall, as between 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 1304. 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 impair, as between the Company and the Holders of the Securities, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders of the Securities the principal of (and premium, if any) and interest
on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the
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<PAGE> 64
relative rights against the Company of the Holders of the Securities and
creditors of the Company other than the holders of Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article of the holders of Senior Indebtedness to receive cash, property or
securities of the Company otherwise payable or deliverable to the Trustee or
such Holder.
SECTION 1305. TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder of a Security
by his acceptance thereof, whether upon original issue or upon transfer or
assignment, 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 1306. 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 noncompliance by the Company with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
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 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 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 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, or (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 1307. NOTICE TO TRUSTEE. The Company shall give prompt written notice
to the Trustee in the form of an Officers' Certificate of any fact known to the
Company which would prohibit the making of any payment of money to or by the
Trustee in respect of the Securities pursuant to the provisions of this
Article. 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 pursuant to the provisions of this
Article, unless and until the Trustee shall have received at its Corporate
Trust Office written notice thereof from the Company or a holder or holders of
Senior Indebtedness or from any trustee therefor at least two Business Days
prior to such payment date; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of Section 601, shall be
entitled in all respects to assume that no such facts exist.
Subject to the provisions of Section 601, 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 on
behalf of such holder) to establish that such notice has been given by a holder
of Senior Indebtedness or a trustee on behalf of any such holder. In the event
that
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<PAGE> 65
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 1308. RELIANCE ON CERTIFICATE OF LIQUIDATING AGENT. Upon any payment
or distribution referred to in this Article, the Trustee, subject to the
provisions of Section 601, 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 a dissolution, winding up or total or partial liquidation or
reorganization of the Company is pending, or a certificate of the trustee in
bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of the Securities for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article.
SECTION 1309. 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 the 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 1310. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS. 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.
SECTION 1311. ARTICLE APPLICABLE TO PAYING AGENT. 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 shall otherwise require) 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 this Section
shall not apply to the Company or any Affiliate of the Company if it or such
Affiliate acts as Paying Agent.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of Holders
of Securities of any or all series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent,
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<PAGE> 66
waiver or other action provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
SECTION 1402. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1401, to be held
at such times and at such place in New York, New York, as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 107, not less than 20 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in aggregate principal amount of the Outstanding
Securities of any series, shall have requested the Trustee for any such series
to call a meeting of the Holders of Securities of such series for any purpose
specified in Section 1401, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have made the first publication of the notice of such meeting within 30
days after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be,
may determine the time and the place in New York, New York, for such meeting
and may call such meeting for such purposes by giving notice thereof as
provided in Subsection (a) of this Section.
SECTION 1403. PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled to vote
at any meeting of Holders of Securities of any series, a Person shall be (1) a
Holder of one or more Outstanding Securities of such series, or (2) a Person
appointed by an instrument in writing a proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 1404. QUORUM; ACTION. The Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series. In
the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In any other case, the meeting may be adjourned
for a period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting may be further adjourned
for a period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Subject to Section
1405(d), notice of the reconvening of any adjourned meeting shall be given as
provided in Section 1402(a), except that such notice need be given only once
not less than five days prior to the date on which the meeting is scheduled to
be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly that Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted
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<PAGE> 67
by the affirmative vote of the Holders of a majority in aggregate principal
amount of the
Outstanding Securities of that series; provided, however, that, except as
limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent or waiver which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage that is less than a majority in aggregate principal amount
of the Outstanding Securities of a series and may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
by the affirmative vote of the Holders of such specified percentage in
aggregate principal amount of the Outstanding Securities of that series.
Except as limited by the proviso to Section 902, any resolution passed
or decision taken at any meeting of Holders of Securities of any series duly
held in accordance with this Section shall be binding on all the Holders of
Securities of such series, whether or not present or represented at the
meeting.
SECTION 1405. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) The holdings of Securities shall be evidenced in the manner
specified in Section 105 and the appointment of any proxy shall be evidenced in
the manner specified in Section 105 or by having the signature of the person
executing the proxy witnessed or guaranteed by any trust company, bank or
banker. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without other
proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1402(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series and each
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security of such series or as a proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1402 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of such series represented at the meeting;
and the meeting may be held as so adjourned without further notice.
SECTION 1406. COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The vote upon
any resolution submitted to any meeting of Holders of Securities of any series
shall be by written ballots on which shall be subscribed the signatures of the
Holders of Securities of such series or of their representatives by proxy and
the principal amounts and serial numbers of the Outstanding Securities of such
series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their
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<PAGE> 68
verified written reports in duplicate of all votes cast at the meeting. A
record, at least in duplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of the meeting and
there shall be attached to such record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of the
meeting and showing that such notice was given as provided in Section 1402 and,
if applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
* * *
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.
FRUIT OF THE LOOM, INC.
[CORPORATE SEAL]
By__________________________________
Print Name:_________________________
Title:______________________________
[TRUSTEE]
[CORPORATE SEAL]
By__________________________________
Print Name:_________________________
Title:______________________________
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<PAGE> 69
STATE OF _________________________ )
) SS
COUNTY OF ________________________ )
On the _____ day of _______________________________, before me
personally came _____________________________________________, to me known,
who, being by me duly sworn, did depose and say that he is ________________ of
FRUIT OF THE LOOM, INC., one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
________________________________________________________________________________
______________________________
Notary Public in _________ County for the State of __________
My Commission Expires _____________________________
[NOTARIAL SEAL]
STATE OF _________________________ )
) SS
COUNTY OF ________________________ )
On the _____ day of _______________________________, before me
personally came _____________________________________________, to me 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.
______________________________________________
______________________________________________
__________________ Notary Public in
__________ County for the State of __________
My Commission Expires _____________________________
[NOTARIAL SEAL]
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<PAGE> 1
EXHIBIT 5
Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinios 60661
July 10, 1997
Fruit of the Loom, Inc.
233 South Wacker Drive
5000 Sears Tower
Chicago, Illinois 60606
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Fruit of the Loom, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing of a
registration statement on Form S-3 (the "Registration Statement") with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act"). The Registration Statement relates
to the registration of up to $850,000,000 aggregate initial offering price of
an indeterminate amount of the following: (i) debt securities ("Debt
Securities") consisting of debentures, notes and/or other evidences of
indebtedness, in one or more series, which are to be issued pursuant to one or
more indentures (each, an "Indenture"), in each case between the Company and
the trustees named therein (each, a "Trustee"), proposed forms of which have
been filed as exhibits to the Registration Statement, (ii) shares of the
Company's preferred stock, par value $.01 per share ("Preferred Stock"), in one
or more series, and (iii) shares of the Company's Class A Common Stock, par
value $.01 per share (the "Class A Common Stock"). The Debt Securities,
Preferred Stock and Class A Common Stock (collectively referred to as
"Securities") may be issued from time to time, pursuant to Rule 415 under the
Securities Act. Specific terms pertaining to the Securities offered by the
Company will be determined at or prior to the time of issuance and will be set
forth in one or more supplements to the Prospectus (each, a "Prospectus
Supplement") constituting part of the Registration Statement.
In connection with this opinion, we have relied as to matters of fact,
without investigation, upon certificates of public officials and others and
upon affidavits, certificates and written statements of directors, officers and
employees of, and the accountants and transfer agent for, the Company. We also
have examined originals or copies, certified or otherwise identified to our
satisfaction, of such instruments, documents and records as we have deemed
relevant and necessary to examine for the purpose of this opinion, including
(a) the Registration Statement, (b) the Restated Certificate of Incorporation
of the Company, as amended (the "Restated Certificate"), (c) the By-Laws of the
Company and (d) the proposed forms of the Indentures.
<PAGE> 2
Fruit of the Loom, Inc.
July 10, 1997
Page 2
In connection with this opinion, we have assumed the accuracy and
completeness of all documents and records that we have reviewed, the
genuineness of all signatures, the authenticity of the documents submitted to
us as originals and the conformity to authentic original documents of all
documents submitted to us as certified, conformed or reproduced copies.
Based upon and subject to the foregoing, it is our opinion that:
1. Upon (i) adoption by the Company's Board of Directors
or a duly authorized committee thereof of resolutions authorizing the
issuance of the Class A Common Stock and (ii) the issuance and
delivery by the Company of the Class A Common Stock, upon receipt of
lawful consideration therefor as determined by the Company's Board of
Directors or a duly authorized committee thereof (or pursuant to
conversion or exchange of Preferred Stock or Debt Securities, in
accordance with the applicable certificate of designation, preferences
and rights ("Certificate of Designation") or Indenture, as the case
may be), in the manner contemplated by the Registration Statement, any
applicable underwriting agreement and any applicable Prospectus
Supplement, the Class A Common Stock will be validly issued, fully
paid and nonassessable;
2. Upon (i) approval by the Company's Board of Directors
of the terms of the Preferred Stock, including, without limitation,
the designation, number of shares, dividend rate, any conversion or
exchange rights, any redemption or sinking fund provisions and
liquidation preference thereof, (ii) the Company's execution and
filing with the Secretary of State of the State of Delaware of a
Certificate of Designation (containing such terms as approved by the
Company's Board of Directors) and its effectiveness in accordance with
the Delaware General Corporation Law, (iii) the adoption by the
Company's Board of Directors or a duly authorized committee thereof of
resolutions authorizing the issuance of the Preferred Stock, (iv) the
filing by the Company of a Prospectus Supplement describing the terms
of the Preferred Stock, as contemplated by the applicable Certificate
of Designation, with the Commission pursuant to the Securities Act and
the rules and regulations thereunder, and (v) the issuance and
delivery by the Company of the Preferred Stock, upon receipt of lawful
consideration therefor as determined by the Company's Board of
Directors or a duly authorized committee thereof (or pursuant to
conversion or exchange of Debt Securities or another class or series
of Preferred Stock), in the manner contemplated by the Registration
Statement, any applicable underwriting agreement and any applicable
Prospectus Supplement, the Preferred Stock will be validly issued,
fully paid and nonassessable; and
3. Upon (i) execution and delivery by the Company and
the Trustee thereunder of the applicable Indenture, (ii) the
qualification of the Trustee under the
<PAGE> 3
Fruit of the Loom, Inc.
July 10, 1997
Page 3
applicable Indenture in accordance with the Trust Indenture Act of
1939, as amended, (iii) the adoption by the Company's Board of
Directors or a duly authorized committee thereof of resolutions
authorizing the terms, issuance and delivery of the Debt Securities as
contemplated by the applicable Indenture, (iv) the filing of a
Prospectus Supplement describing the terms of the Debt Securities, as
contemplated by the applicable Indenture, with the Commission pursuant
to the Securities Act and the rules and regulations thereunder, and
(v) the execution by the Company, authentication by the relevant
Trustee and delivery by the Company of the Debt Securities, upon
receipt of lawful consideration therefor as determined by the
Company's Board of Directors or a duly authorized committee thereof,
in the manner contemplated by Registration Statement, any applicable
underwriting agreement and any applicable Prospectus Supplement, the
Debt Securities will be legally issued and binding obligations of the
Company under the terms of the applicable Indenture (except (x) as
enforceability may be limited by the effects of bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws affecting the enforcement of creditors' rights generally
and by the effects of general principles of equity, whether applied by
a court of equity or law, (y) as rights to indemnity or contribution
under the same may be limited by federal or state securities laws or
the public policy underlying such laws; and (z) that we express no
opinion as to the waiver of the defense of usury).
Our opinions expressed above are limited to the laws of the State of
New York, the laws of the United States of America and the General Corporation
Law of the State of Delaware, and we do not express any opinion concerning any
other laws. This opinion is given as of the date hereof and we assume no
obligation to advise you of changes that may hereafter be brought to our
attention.
We hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus forming a part of the Registration Statement and to
the use of this opinion for filing as Exhibit 5 to the Registration Statement.
Very truly yours,
/s/ KATTEN MUCHIN & ZAVIS
KATTEN MUCHIN & ZAVIS
<PAGE> 1
EXHIBIT 12
FRUIT OF THE LOOM, INC. AND SUBSIDIARIES
STATEMENT OF COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF
EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
(DOLLARS IN MILLIONS)
<TABLE>
<CAPTION>
Year Ended December 31,
1st Qtr 1st Qtr ------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
<S> <C> <C> <C> <C> <C> <C> <C>
FIXED CHARGES:
Interest Expense $ 18.9 $ 27.3 $ 103.6 $ 116.9 $ 95.4 $ 72.7 $ 82.1
Amortization of debt issuance
costs 0.3 0.6 2.1 2.5 3.0 5.8 7.2
Portion of rents representative of
interest factor 3.7 3.7 14.8 12.2 6.7 3.8 3.0
Guarantor Debt Charges(1) 0.6 0.0 0.6 0.0 0.0 0.0 0.0
Capitalized interest expense 0.0 0.4 0.6 1.7 1.9 2.1 1.1
Total fixed charges $ 23.5 $ 32.0 $ 121.7 $ 133.3 $ 107.0 $ 84.4 $ 93.4
Perferred Stock Dividends(2) $ -- $ -- $ -- $ -- $ -- -- $ --
EARNINGS:
Earnings before income tax
expense, extraordinary items and
cumulative effect of change in
accounting principle $ 29.5 $ 20.0 $ 185.3 $ (246.7) $ 133.5 $ 367.1 $ 319.9
Interest Expense 18.9 27.3 103.6 116.9 95.4 72.7 82.1
Amortization of debt issuance costs 0.3 0.6 2.1 2.5 3.0 5.8 7.2
Portion of rents representative of
interest factor 3.7 3.7 14.8 12.2 6.7 3.8 3.0
Amortization of capitalized
interest 0.3 0.3 1.2 1.2 1.1 0.9 0.8
Total earnings $ 52.7 $ 52.8 $ 307.0 $ (113.9) $ 239.7 $ 450.3 $ 413.0
Ratio of earnings to combined fixed
charges and perferred stock dividends 2.2 x 1.7 x 2.5 x * x 2.2 x 5.3 x 4.4 x
</TABLE>
* The deficiency in earnings to cover fixed charges for the year ended
December 31, 1995 was $247.2.
(1) Guarantor debt charges are the estimated interest related to the Company's
evaluation of its exposure under its guarantee of debt incurred by Acme
Boot Company, Inc., an affiliate of the Company.
(2) The Company had no shares of preferred stock outstanding, and no dividends
were declared or paid, during any of the periods indicated.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Fruit of the Loom,
Inc. for the registration of Debt Securities, Preferred Stock and Class A
Common Stock at an aggregate initial offering price not to exceed $850,000,000
and to the incorporation by reference therein of our report dated February 12,
1997, with respect to the consolidated financial statements and schedule of
Fruit of the Loom, Inc, included in its Annual Report (Form 10-K) for the year
ended December 31, 1996, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Chicago, Illinois
July 9, 1997
