As filed with the Securities and Exchange Commission on October 20, 1998
Registration No. 333-65061
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
Pre-effective Amendment No. 1
to
Form S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------------------
Richfood Holdings, Inc.
(Exact name of registrant as specified in its charter)
Virginia 54-1438602
(State or other jurisdiction of (I.R.S. Employer
incorporation) Identification No.)
4860 Cox Road, Suite 300
Glen Allen, Virginia 23060
(804) 915-6000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
----------------------
John E. Stokely
Chairman, President and Chief Executive Officer
Richfood Holdings, Inc.
4860 Cox Road, Suite 300
Glen Allen, Virginia 23060
(804) 915-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------------
Copies to:
Gary E. Thompson John W. White
Hunton & Williams Cravath, Swaine & Moore
Riverfront Plaza, East Tower Worldwide Plaza
951 East Byrd Street 825 Eighth Avenue
Richmond, Virginia 23219 New York, New York 10019
(804) 788-8200 (212) 474-1732
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<PAGE>
PROSPECTUS SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED OCTOBER 20, 1998
$500,000,000
Richfood Holdings, Inc.
Debt Securities
Common Stock
Preferred Stock
Warrants
---------------------
Richfood Holdings, Inc., a Virginia corporation ("Richfood" or the
"Company"), intends to issue from time to time in one or more series up to
$500,000,000 aggregate offering price of its (i) unsecured debt securities
("Debt Securities"), which may be either senior debt securities ("Senior Debt
Securities") or subordinated debt securities ("Subordinated Debt Securities"),
(ii) shares of preferred stock, without par value ("Preferred Stock"), which may
be issued in the form of depositary shares evidenced by depositary receipts
("Depositary Shares"), (iii) shares of common stock, without par value ("Common
Stock"), and (iv) warrants to purchase shares of Common Stock or Preferred Stock
("Warrants") on terms to be determined at the time of sale (the Debt Securities,
Preferred Stock, Depositary Shares, Common Stock and Warrants are referred to
collectively as the "Securities"). The Securities offered hereby (the "Offered
Securities") may be offered separately or as units with other Offered
Securities, in separate series in amounts, at prices and on terms to be
determined at the time of sale and to be set forth in a supplement to this
Prospectus (a "Prospectus Supplement").
The Senior Debt Securities will rank equally with all other
unsubordinated and unsecured indebtedness of the Company. The Subordinated Debt
Securities will be subordinated in right of payment to all existing and future
Senior Indebtedness, as defined in the Senior Indenture described herein. Both
the Senior Debt Securities and the Subordinated Debt Securities will be
effectively subordinated to any secured indebtedness of the Company and its
subsidiaries and to any unsecured, unsubordinated indebtedness and other
liabilities of the Company's subsidiaries. At September 19, 1998, the Company
and its subsidiaries had $16,352,000 of secured indebtedness outstanding, and
the Company's subsidiaries had $231,008,000 of unsecured, unsubordinated
indebtedness outstanding. The indentures governing Debt Securities will not
contain any restrictions on the ability of the Company to incur additional
unsecured indebtedness or any provisions that would afford holders of the Debt
Securities protection in the event of a significant transaction involving the
Company that might adversely affect the holders of the Debt Securities. See
"Description of Debt Securities."
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered, such as, where applicable, (i) in the case of
Debt Securities, the specific designation (including whether senior or
subordinated), aggregate principal amount, denomination, maturity, premium, if
any, priority, interest rate (which may be variable or fixed), time of payment
of any premium and any interest, terms for optional redemption or repayment or
for sinking fund payments, terms for conversion into or exchange for other
Offered Securities or the securities of another issuer, and the initial public
offering price; (ii) in the case of Preferred Stock, the specific title and
stated value, number of shares or fractional interests therein, and the
dividend, liquidation, redemption, conversion, voting and other rights, the
initial public offering price, and whether interests in the Preferred Stock will
be represented by Depositary Shares; (iii) in the case of Common Stock, the
initial offering price; (iv) in the case of Warrants, the number and terms
thereof, the description and the number of securities issuable upon their
exercise, the exercise price, the terms of the offering and sale thereof and,
where applicable, the duration and detachability thereof, and (v) in the case of
all Offered Securities, whether such Offered Security will be offered separately
or as a unit with other Offered Securities, will be set forth in a Prospectus
Supplement. The Prospectus Supplement will also contain information, where
applicable, about material United States federal income tax considerations
relating to, and any listing on a securities exchange of, the Offered Securities
covered by the Prospectus Supplement.
(continued...)
(cover page continued)
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.
<PAGE>
The Offered Securities may be sold for public offering to underwriters
or dealers, which may be a group of underwriters represented by one or more
managing underwriters, or through such firms or other firms acting alone or
through dealers. The Offered Securities may also be sold directly by the Company
or through agents to investors. The names of any agents, dealers or managing
underwriters, and of any underwriters, involved in the sale of the Offered
Securities in respect of which this Prospectus is being delivered, the
applicable agent's commission, dealer's purchase price or underwriter's discount
and the net proceeds to the Company from such sale will be set forth in the
Prospectus Supplement. See "Plan of Distribution."
This Prospectus may not be used to consummate the sale of the
Securities unless accompanied by a 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 ____________ __, 1998.
<PAGE>
AVAILABLE INFORMATION
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 statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the Commission's Regional Offices
at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661
and 7 World Trade Center, Suite 1300, New York, New York 10048. Copies of such
material can be obtained from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates.
Additionally, the Commission maintains an internet web site at www.sec.gov that
contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission. Such
reports, proxy statements and other information concerning the Company may also
be inspected at the offices of the New York Stock Exchange, Inc. at 20 Broad
Street, New York, New York 10005.
The Company has filed with the Commission in Washington, D.C. a
Registration Statement on Form S-3 (herein, together with all amendments and
exhibits thereto, referred to as the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Securities to which this Prospectus relates. As permitted by the Rules and
Regulations of the Commission, this Prospectus does not contain all of the
information set forth in the Registration Statement, including the exhibits
thereto, which may be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 upon payment of the
prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission under
Section 13 of the Exchange Act are hereby incorporated by reference in this
Prospectus: (i) the Company's Annual Report on Form 10-K for the fiscal year
ended May 2, 1998; (ii) the Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended July 25, 1998; (iii) the Company's Current Report on Form
8-K, dated May 13, 1998, as amended by the Company's Current Report on Form
8-K/A1 filed July 27, 1998, and as further amended by the Company's Current
Report on Form 8-K/A2 filed September 30, 1998; (iv) the Company's Current
Report on Form 8-K, dated March 19, 1998, as amended by the Company's Current
Report on Form 8-K/A1 filed May 18, 1998; and (v) the description of the Common
Stock contained in the Company's registration statement on Form 8-A, dated April
29, 1988, together with any further amendments or reports filed for the purpose
of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of the offering of the Securities shall be deemed to be
incorporated by reference into this Prospectus and to be made a part hereof from
their respective dates of filing. 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 hereof to the extent that a statement
contained herein (or in any other subsequently filed document that is deemed to
be incorporated by reference herein) modifies or supersedes such previous
statement. Any such statement so modified or superseded shall not be deemed to
constitute a part of this Prospectus or the Prospectus Supplement.
The Company will furnish without charge to each person to whom a copy
of this Prospectus is delivered, a copy of any or all of the documents
incorporated by reference herein, other than exhibits to such documents (unless
such exhibits are specifically incorporated by reference therein). Written or
telephone requests should be directed to Richfood Holdings, Inc., 4860 Cox Road,
Suite 300, Glen Allen, Virginia 23060, Attention: Scott M.J. Anderegg, Senior
Attorney and Assistant General Counsel, (804) 915-6000.
FORWARD-LOOKING STATEMENTS
This Prospectus, any Prospectus Supplement and the documents
incorporated by reference herein may contain forward-looking statements within
the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act, including, without limitation, statements containing the words "believes,"
"anticipates," "expects" and words of similar import. Such forward-looking
statements relate to future events, the future financial performance of the
Company, and involve known and unknown risks, uncertainties and other factors
which may cause the actual results, performance or achievements of the Company
or industry to be materially different from any future results, performance or
achievements expressed or implied by such forward-looking statements.
Prospective investors should specifically consider the various factors
identified in the Prospectus, any Prospectus Supplement, and the documents
incorporated by reference herein, which could cause actual results to differ.
The Company disclaims any obligation to update any such factors or to publicly
announce the result of any revisions to any of the forward-looking statements
contained or incorporated by reference herein to reflect future events or
developments.
2
<PAGE>
THE COMPANY
Richfood is a major integrated food company operating primarily in the
Mid-Atlantic region of the United States. The Company's Wholesale Division is
the leading wholesale food distributor in the Mid-Atlantic region and the fourth
largest publicly owned food wholesaler in the United States. As a result of
recent acquisitions, the Company's Retail Division is now one of the largest
food retailers in its Mid-Atlantic operating region.
The Company's Wholesale Division supplies a comprehensive selection of
national brand and private label grocery products, dairy products, frozen foods,
fresh produce items, meats, delicatessen and bakery products and non-food items
from its two principal distribution centers. The Company's distribution centers
are strategically located within its operating region and have capacity to
accommodate additional growth. The Company's Wholesale Division serves
approximately 1,400 retail grocery stores, including leading regional chains and
smaller independent retailers throughout the Mid-Atlantic region, offering its
customers a dependable supply and prompt delivery of over 37,000 grocery and
non-grocery items at competitive prices. The Company's Retail Division operates
the 43 store Farm Fresh chain located primarily in the Hampton Roads region of
Virginia, 38 Shoppers Food Warehouse stores in the greater Washington, D.C.,
metropolitan area and the Metro chain of 16 retail grocery stores in the
metropolitan Baltimore, Maryland area.
Richfood was organized in July 1987 as the successor to a wholesale
grocery firm established in 1935. The Company is headquartered at 4860 Cox Road,
Glen Allen, Virginia 23060.
USE OF PROCEEDS
Except as may be otherwise set forth in the Prospectus Supplement
accompanying this Prospectus, the net proceeds from the sale of the Securities
will be used for general corporate purposes, which may include financing
acquisitions, the repayment of indebtedness and the repurchase of outstanding
securities of the Company, including Common Stock. Funds not required
immediately for those purposes may be invested temporarily in short-term
marketable securities.
The Company is a party to a Credit Agreement (the "Credit Agreement")
which includes a $200 million term loan (the "Term Loan") that matures on
November 12, 1999. The Credit Agreement requires prepayment of the Term Loan
under certain circumstances, which include (i) certain sales by the Company of
its capital stock or other equity securities (including the Common Stock and the
Preferred Stock), and (ii) any incurrence by the Company of additional debt for
money borrowed with a term exceeding one year (which may include Debt
Securities). In general, if Securities are sold pursuant to this Prospectus, the
net proceeds would first be used to repay any amounts outstanding under the Term
Loan.
A brief description of any indebtedness to be repaid with the net
proceeds from the sale of Securities will be set forth in the Prospectus
Supplement.
CERTAIN RATIOS
The following table sets forth the Company's consolidated ratio of
earnings to fixed charges for the periods shown. For purposes of calculating the
ratio, earnings consist of pretax income from continuing operations plus fixed
charges. Fixed charges consist of (i) interest expense, (ii) amortization of
debt expense, discount and premium relating to any indebtedness and (iii) the
interest portion of net rental expense.
<TABLE>
<CAPTION>
12 Weeks Ended Fiscal Year Ended
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July 25, 1998 July 26, 1997 May 2, 1998 May 3, 1997 April 27, 1996 April 29, 1995 April 30, 1994
------------- ------------- ----------- ----------- -------------- -------------- --------------
<S> <C>
Ratio of earnings to 2.8x 7.2x 5.7x 6.8x 4.0x 3.4x 2.3x
fixed charges
</TABLE>
3
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The following sets forth certain general terms and provisions of the
Debt Securities offered hereby. Further terms of the Offered Securities are set
forth in the Prospectus Supplement.
The Senior Debt Securities are to be issued under an Indenture, dated
as of __________ __, 199_, between the Company and The Bank of New York, as
Trustee (the "Senior Trustee"). The Subordinated Debt Securities are to be
issued under an Indenture, dated as of __________ __, 199_, between the Company
and The Bank of New York, as Trustee (the "Subordinated Trustee"). The Senior
Indenture and the Subordinated Indenture are sometimes referred to individually
as an "Indenture" and collectively as the "Indentures." The Senior Trustee and
the Subordinated Trustee are sometimes referred to individually as a "Trustee"
and collectively as the "Trustees." The form of the Senior Indenture and the
form of the Subordinated Indenture are filed as exhibits to the Registration
Statement. The following summaries of material provisions of the Indentures do
not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all the provisions of the Indentures, including the
definitions therein of certain terms. Whenever particular Sections, Articles or
defined terms of the Indentures are referred to, it is intended that such
Sections, Articles or defined terms shall be incorporated herein by reference.
General
The Debt Securities to be offered by this Prospectus are limited to
$500,000,000 in aggregate principal amount of unsecured debt obligations of the
Company. However, the Indentures do not limit the aggregate principal amount of
Debt Securities that may be issued thereunder and provide that Debt Securities
may be issued thereunder from time to time in one or more series. (Section 301).
Neither the Indentures nor the Debt Securities will limit or otherwise restrict
the amount of Senior Indebtedness (as defined below under "--Subordination of
Subordinated Debt Securities") that may be incurred by the Company or any of its
subsidiaries.
The Senior Debt Securities will be unsecured obligations of the Company
and will rank on a parity with all other unsecured and unsubordinated
indebtedness of the Company. The Senior Debt Securities will be effectively
subordinated to any secured indebtedness of the Company and its subsidiaries and
to any unsecured, unsubordinated indebtedness of the Company's subsidiaries. At
September 19, 1998, the Company and its subsidiaries had $16,352,000 of secured
indebtedness outstanding, and the Company's subsidiaries had $231,008,000 of
unsecured, unsubordinated indebtedness outstanding. The Subordinated Debt
Securities will be unsecured obligations of the Company and will be subordinated
in right of payment to all Senior Indebtedness.
Reference is made to the applicable Prospectus Supplement for the
specific terms of the series of Debt Securities offered thereby including: (i)
the title of the Debt Securities of the series (which shall distinguish the Debt
Securities of the series from all other series of Debt Securities); (ii) any
limit upon the aggregate principal amount of the Debt Securities of the series
which may be authenticated and delivered under the Indenture; (iii) the date or
dates, or the method by which such date or dates will be determined or extended,
on which the principal and premium, if any, of the Debt Securities of the series
will be payable; (iv) the rate or rates (which may be fixed or floating), or the
method of determination thereof, at which the Debt Securities of the series
shall bear interest, if any, the date or dates from which such interest shall
accrue, the date or dates on which such interest shall be payable and the record
date, if any, for the interest payable; (v) if other than the principal office
of the Trustee, the place or places where the principal of (and premium, if any)
and interest on Debt Securities of the series shall be payable; (vi) the period
or periods within which, the price or prices at which and the terms and
conditions upon which Debt Securities of the series may be redeemed, in whole or
in part, at the option of the Company; (vii) the obligation, if any, of the
Company to redeem or purchase Debt 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 Debt Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation; (viii) if other
than denominations of $1,000 and any integral multiple thereof, the
denominations in which Debt Securities of the series shall be issuable; (ix) if
other than the principal amount thereof, the portion of the principal amount of
Debt Securities of the series which shall be payable upon declaration of
acceleration of the maturity thereof in response to the occurrence of an Event
of Default; (x) if the Debt Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities, the Depositary Bank for
such Global Security or Securities; (xi) any addition to or change in the Events
of Default from those set forth in the Indenture which applies to any Debt
Securities of the series; (xii) any addition to or change in the covenants of
the Company from those set forth in the Indenture which applies to Debt
Securities of the series; (xiii) if the Debt Securities of the series are
convertible into Common Stock, the conversion price therefor, the period during
which such Debt Securities will be convertible and any terms and conditions for
the conversion of such Debt Securities which differ from those set forth in the
Indenture; (xiv) the application, if any, of the Indenture provisions for
defeasance and discharge or covenant defeasance to the Debt Securities of the
series and any provisions in modification of, in addition to or in lieu of such
provisions; (xv) the amount of proceeds to be received by the Company from the
sale of such Debt Securities; (xvi) any trustee or fiscal or authenticating or
paying agent, issuing and paying agent, transfer agent or registrar or any other
person or entity who shall act in connection with such Debt Securities for or on
behalf of the holders thereof or the Company or an affiliate; (xvii) the listing
of the Debt Securities on any securities exchange or inclusion in any other
market or quotation or trading system; and (xviii) any other terms, conditions
and provisions of the series (which terms, conditions and provisions shall not
be inconsistent with the provisions of the Indenture).
4
<PAGE>
The holders of Debt Securities of a specified series that are
convertible into Common Stock ("Convertible Debt Securities") will be entitled
at certain times specified in the Prospectus Supplement relating to such
Convertible Debt Securities, subject to prior redemption, repayment or
repurchase, to convert any Convertible Debt Securities of such series into
Common Stock, at the conversion price set forth in such Prospectus Supplement,
subject to adjustment and to such other terms as are set forth in such
Prospectus Supplement. (Senior Indenture, Article 14; Subordinated Indenture,
Article 15).
Unless otherwise provided in the Prospectus Supplement, principal of
and any premium and interest on the Debt Securities shall be payable, and the
transfer of the Debt Securities will be registrable, at the office of the
applicable Trustee, except that, at the option of the Company, interest may be
paid by mailing a check to the address of the person entitled thereto as it
appears on the register for the Debt Securities. (Sections 305, 307 and 1002).
Unless otherwise indicated in the Prospectus Supplement, the Debt
Securities will be issued only in fully registered form without coupons and in
denominations of $1,000 or any integral multiple thereof. No service charge will
be made for any registration of transfer or exchange of the Debt Securities, but
the Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. (Sections 302 and 305).
Debt Securities may be issued as Original Issue Discount Securities (as
defined in the Indentures) to be sold at a substantial discount below their
principal amount. Special federal income tax and other considerations applicable
thereto will be described in the Prospectus Supplement relating thereto.
Certain Covenants Applicable to Senior Debt Securities
Unless otherwise indicated in the applicable Prospectus Supplement with
respect to a series of Senior Debt Securities, Senior Debt Securities will have
the benefit of the following covenants contained in the Senior Indenture. Unless
otherwise indicated in the applicable Prospectus Supplement with respect to
Subordinated Debt Securities of a series, the Subordinated Debt Securities will
not have the benefit of such covenants. Certain capitalized terms used in this
section are defined below under "Certain Definitions." Other capitalized terms
not otherwise defined herein have the meanings ascribed to them in the Senior
Indenture.
Restrictions on Secured Debt and on Debt of Restricted Subsidiaries.
The Senior Indenture provides that the Company will not itself, and will not
permit any Restricted Subsidiary to, incur, issue, assume or guarantee any Debt,
after the first date on which a Senior Debt Security is authenticated by the
Trustee under the Senior Indenture, which Debt is secured by a Mortgage on any
Principal Property of the Company or any Restricted Subsidiary, or any shares of
Capital Stock or Debt of any Restricted Subsidiary, without effectively
providing that the Securities of each series of Senior Debt Securities then
Outstanding (together with, if the Company shall so determine, any other Debt of
the Company or such Restricted Subsidiary then existing or thereafter created
that is not subordinate to the Securities of each series then Outstanding) shall
be secured equally and ratably with (or, at the option of the Company, prior to)
such secured Debt, so long as such secured Debt shall be so secured, and will
not permit any Restricted Subsidiary to incur, issue, assume or guarantee any
unsecured Debt or to issue any Preferred Stock, in each instance unless the
aggregate amount of all such Debt together with the aggregate preferential
amount to which such Preferred Stock would be entitled on any involuntary
distribution of assets and all Attributable Debt of the Company and its
Restricted Subsidiaries in respect of sale and leaseback transactions would not
exceed 10% of Consolidated Net Tangible Assets. This restriction does not apply
to, and there shall be excluded in computing Debt for the purpose of such
restriction: (i) Debt secured by Mortgages on any property acquired, constructed
or improved by the Company or any Restricted Subsidiary after the first date on
which a Senior Debt Security is authenticated by the Trustee under the Senior
Indenture, which Mortgages are created or assumed contemporaneously with, or
within 30 months after, such acquisition, or completion of such construction or
improvement, or within six months thereafter pursuant to a firm commitment for
financing arranged with a lender or investor within such 30-month period, to
secure or provide for the payment of all or any part of the purchase price of
such property or the cost of such construction or improvement incurred after the
first date on which a Senior Debt Security is authenticated by the Trustee under
the Senior Indenture or Mortgages on any property existing at the time of the
acquisition thereof if any such Mortgage does not apply to any property
previously owned by the Company or any Restricted Subsidiary other than, in the
case of any such construction or improvement, any previously unimproved real
property on which the property so constructed, or the improvement, is located;
(ii) Debt of any corporation existing at the time such corporation is merged
with or into the Company or a Restricted Subsidiary, provided that such Debt was
not incurred in contemplation of such merger; (iii) Debt of any corporation
existing at the time such corporation becomes a Restricted Subsidiary, provided
that such Debt was not incurred in contemplation of such corporation becoming a
Restricted Subsidiary; (iv) Debt of a Restricted Subsidiary to the Company or to
another Restricted Subsidiary; (v) Debt secured by Mortgages securing
obligations issued by a state, territory or possession of the United States, or
any political subdivision of any of the foregoing, or the District of Columbia,
to finance the acquisition of or construction on property, and on which the
interest is not, in the opinion of counsel or in accordance with a ruling issued
by the Internal Revenue Service, includable in gross income of the holder; and
(vi) certain extensions, renewals or replacements of any Debt referred to in the
foregoing clauses (i) through (v) inclusive. This restriction does not apply to
any issuance of Preferred Stock by a Restricted Subsidiary to the Company or
another Restricted Subsidiary, provided that such Preferred Stock is thereafter
not transferable to any Person other than the Company or a Restricted
Subsidiary. (Senior Indenture, Section 1008).
5
<PAGE>
Restrictions on Sales and Leasebacks. The Senior Indenture provides
that the Company will not itself, and will not permit any Restricted Subsidiary
to, after the first date on which a Senior Debt Security is authenticated by the
Trustee under the Senior Indenture, enter into any sale and leaseback
transaction with any bank, insurance company, lender or other investor involving
any Principal Property that has been or is to be sold or transferred by the
Company or a Restricted Subsidiary unless, after giving effect thereto, the
aggregate amount of all Attributable Debt with respect to such transactions,
plus all Debt referred to in the preceding paragraph, would not exceed 10% of
Consolidated Net Tangible Assets. This restriction will not apply to, and there
shall be excluded in computing Attributable Debt for the purpose of such
restriction, Attributable Debt with respect to any sale and leaseback
transaction if: (i) the lease in such transaction is for a period (including
renewal rights) not exceeding three years; (ii) the Company or a Restricted
Subsidiary, within 180 days after such transaction, applies an amount not less
than the greater of the net proceeds of the sale of the Principal Property
leased pursuant to such arrangement or the fair market value of the Principal
Property so leased at the time of entering into such arrangement (as determined
by the Board of Directors) to, subject to certain restrictions, the retirement
of Funded Debt of the Company ranking on a parity with or senior to the Senior
Debt Securities or the retirement of Funded Debt of a Restricted Subsidiary;
(iii) such transaction is entered into prior to, at the time of, or within 30
months after the later of the acquisition of the Principal Property or the
completion of the construction thereon; (iv) the lease in such transaction
secures or relates to obligations issued by a state, territory or possession or
the United States, or any political subdivision thereof, or the District of
Columbia, to finance the acquisition of or construction on property, and on
which the interest is not, in the opinion of counsel or in accordance with a
ruling issued by the Internal Revenue Service, includable in the gross income of
the holder; or (v) such transaction is entered into between the Company and a
Restricted Subsidiary or between Restricted Subsidiaries. (Senior Indenture,
Section 1009).
Certain Definitions. The Senior Indenture defines the following terms
used in this section:
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable, at any date as of which the amount thereof is to
be determined, the total net amount of rent required to be paid by such Person
under such lease during the remaining term thereof (excluding any subsequent
renewal or other extension options held by the lessee), discounted from the
respective due dates thereof to such date at the rate of 10% per annum
compounded annually. The net amount of rent required to be paid under any such
lease for any such period shall be the amount of the rent payable by the lessee
with respect to such period, after excluding amounts required to be paid on
account of maintenance and repairs, insurance, taxes, assessments, water rates
and similar charges and contingent rents (such as those based on sales). In the
case of any lease that is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of such penalty, but no
rent shall be considered as required to be paid under such lease subsequent to
the first date upon which it may be so terminated.
"Capital Stock," as applied to the stock of any corporation, means the
capital stock of every class whether now or hereafter authorized, regardless of
whether such capital stock shall be limited to a fixed sum or percentage with
respect to the rights of the holders thereof to participate in dividends and in
the distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of such corporation.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities and (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the most recent balance sheet of the Company
and its consolidated Restricted Subsidiaries and computed in accordance with
generally accepted accounting principles.
"Debt" means (without duplication), with respect to any Person, (i)
every obligation of such Person for money borrowed, (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) every reimbursement obligation of such Person with respect to letters of
credit, bankers' acceptances or similar facilities issued for the account of
such Person and (iv) every obligation of the type referred to in clauses (i)
through (iii) of another Person, the payment of which such Person has guaranteed
or is responsible or liable for, directly or indirectly, as obligor, guarantor
or otherwise (but only, in the case of this clause (iv), to the extent such
Person has guaranteed or is responsible or liable for such obligations).
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"Funded Debt" means (i) all Debt of the Company and each Subsidiary of
the Company maturing on, or renewable or extendible at the option of the obligor
to, a date more than one year from the date of the determination thereof, (ii)
capital lease obligations payable on a date more than one year from the date of
the determination thereof, (iii) guarantees, direct or indirect, and other
contingent obligations of the Company and each Subsidiary of the Company in
respect of, or to purchase or otherwise acquire or be responsible or liable for
(through the investment of funds or otherwise), any obligations of the type
described in the foregoing clauses (i) and (ii) of others (but not including
contingent liabilities on customer receivables sold with recourse), and (iv)
amendments, renewals, extensions and refundings of any obligations of the type
described in the foregoing clauses (i), (ii) and (iii).
"Preferred Stock" means any Capital Stock of any class of the Company
that has a preference over Common Stock in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and that is not mandatorily redeemable or repayable,
or redeemable or repayable at the option of the Holder, otherwise than in shares
of Common Stock or Preferred Stock of another class or series or with the
proceeds of the sale of Common Stock or Preferred Stock.
"Principal Property" means any manufacturing or processing plant,
office facility, retail store, warehouse or distribution center, including, in
each case, the fixtures appurtenant thereto, located within the continental
United States and owned and operated now or hereafter by the Company or any
Restricted Subsidiary and having a book value on the date as of which the
determination is being made of more than 3% of Consolidated Net Tangible Assets.
"Restricted Subsidiary" means a Subsidiary of the Company,
substantially all the property of which is located, or substantially all the
business of which is carried on, within the present 50 States of the United
States and which (i) owns a Principal Property as of the date hereof, or (ii)
acquires a Principal Property after the date hereof from the Company or a
Restricted Subsidiary other than for cash equal to such property's fair market
value as determined by the Board of Directors, or (iii) acquires a Principal
Property after the date hereof by purchase with funds substantially all of which
are provided by the Company or a Restricted Subsidiary or with the proceeds of
indebtedness for money borrowed, which indebtedness is guaranteed in whole or in
part by the Company or a Restricted Subsidiary; provided, however, that
"Restricted Subsidiary" shall not include any Equity Store or Person
participating in the Business Development Program. For purposes of this
definition, (a) "Equity Store" means a Person in which the Company or any of its
Subsidiaries has invested capital or to which it has made loans in accordance
with the business practice of the Company and its Subsidiaries of making equity
investments in Persons, and making or guaranteeing loans to such Persons, for
the purpose of assisting such Persons in acquiring, remodeling, refurbishing,
expanding or operating one or more retail grocery stores and pursuant to which
such Persons are permitted or required to reduce the Company's or the
Subsidiary's equity interest to a minority position over time, and (b) "Business
Development Program" means the business practice of the Company and its
Subsidiaries of making or guaranteeing loans to, or making equity investments
in, third parties engaged in the retail grocery business in exchange for
long-term supply agreements with the Company or any Subsidiary.
Subordination of Subordinated Debt Securities
The obligations of the Company to make any payment on account of the
principal of and premium, if any, and interest on the Subordinated Debt
Securities will be subordinate and junior in right of payment, to the extent set
forth in the Subordinated Indenture, to all Senior Indebtedness of the Company.
(Subordinated Indenture, Article 14).
In the event that the Company shall default in the payment of any
principal of or any premium or interest on any Senior Indebtedness when the same
becomes due and payable, whether at maturity or at a date fixed for prepayment
or by declaration of acceleration or otherwise, then, unless and until such
default shall have been cured or waived or shall have ceased to exist, no direct
or indirect payment (in cash, property, securities, by set-off or otherwise)
will be made or agreed to be made for principal of or any premium or interest on
the Subordinated Debt Securities, or in respect of any redemption, retirement,
purchase or other acquisition of any of the Subordinated Debt Securities.
(Subordinated Indenture, Section 1401). Senior Indebtedness is defined in the
Subordinated Indenture as (i) all indebtedness of the Company for money borrowed
or constituting reimbursement obligations with respect to letters of credit and
interest or currency swap agreements (including indebtedness secured by a
mortgage, conditional sales contract or other lien that is (a) given to secure
all or a part of the purchase price of property subject thereto, whether given
to the vendor of such property or to another or (b) existing on property at the
time of acquisition thereof); (ii) all indebtedness of the Company evidenced by
notes, debentures, bonds or other securities sold by the Company for money;
(iii) lease obligations (including, but not limited to, capitalized lease
obligations); (iv) all indebtedness of others of the kinds described in either
of the preceding clauses (i) or (ii) and all lease obligations and obligations
of others of the kind described in the preceding clause (iii) assumed by or
guaranteed in any manner by the Company or in effect guaranteed by the Company
through an agreement to purchase, contingent or otherwise; and (v) all (whether
initial or seriatim) renewals, deferrals, increases, extensions or refundings of
and modifications to indebtedness of the kinds described in any of the preceding
clauses (i), (ii) or (iv) and all renewals or extensions of leases of the kinds
described in either of the preceding clauses (iii) or (iv); unless, in the case
of any particular indebtedness, lease, renewal, extension or refunding, the
instrument or lease creating or evidencing the same or the assumption or
guarantee of the same expressly provides that such indebtedness, lease, renewal,
extension, deferral, increase, modification or refunding is not superior in
right of payment to the Subordinated Debt Securities or is expressly
subordinated by its terms in right of payment to all other indebtedness of the
Company (including the Subordinated Debt Securities).
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In the event of (i) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceeding relating to the Company, its creditors or its property; (ii) any
proceeding for the liquidation, dissolution or other winding up of the Company,
voluntary or involuntary, whether or not involving insolvency or bankruptcy
proceedings; (iii) any assignment by the Company for the benefit of creditors;
or (iv) any other marshalling of the assets of the Company, all Senior
Indebtedness (including any interest thereon accruing after the commencement of
any such proceedings) shall first be paid in full before any payment or
distribution, whether in cash, securities or other property, is made to any
holder of any of the Subordinated Debt Securities on account thereof. In such
event, any payment or distribution on account of the principal of or any premium
or interest on the Subordinated Debt Securities, whether in cash, securities or
other property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in the subordination provisions
with respect to the Subordinated Debt Securities, to the payment of all Senior
Indebtedness at the time outstanding, and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), which would
otherwise (but for the subordination provisions) be payable or deliverable in
respect of the Subordinated Debt Securities, shall be paid or delivered directly
to the holders of Senior Indebtedness in accordance with the priorities then
existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings) has
been paid in full. In the event of any such proceeding, after payment in full of
all sums owing with respect to Senior Indebtedness, the Holder or Holders of
Subordinated Debt Securities, together with the holders of any obligations of
the Company ranking on a parity with the Subordinated Debt Securities, shall be
entitled to be paid from the remaining assets of the Company the amounts at the
time due and owing on account of unpaid principal of (and premium, if any) and
interest on the Subordinated Debt Securities and such other obligations before
any payment or other distribution, whether in cash, property or otherwise, shall
be made on account of any Capital Stock or obligations of the Company ranking
junior to the Subordinated Debt Securities and such other obligations. If any
payment or distribution on account of the principal of or any premium or
interest on the Subordinated Debt Securities of any character, whether in cash,
securities or other property (other than securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinate, at least to the extent provided in the subordination
provisions with respect to the Subordinated Debt Securities, to the payment of
all Senior Indebtedness at the time outstanding and to any securities issued in
respect thereof under any such plan of reorganization or readjustment), or any
security shall be received by the Trustee or any Holder of any Subordinated Debt
Securities in contravention of any of the terms of the Indenture and before all
the Senior Indebtedness shall have been paid in full, such payment or
distribution or security will be received in trust for the benefit of, and will
be paid over or delivered and transferred to, the Holders of the Senior
Indebtedness at the time outstanding in accordance with the priorities then
existing among such Holders for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay all such Senior
Indebtedness in full. (Subordinated Indenture, Section 1401).
By reason of such subordination, in the event of the insolvency of the
Company, Holders of Senior Indebtedness may receive more, ratably, and any
Holder or Holders of the Subordinated Debt Securities having a claim pursuant to
such Subordinated Debt Securities may receive less, ratably, than the other
creditors of the Company. Such subordination will not prevent the occurrence of
an Event of Default in respect of the Subordinated Debt Securities.
Effect of Corporate Structure
The Debt Securities are obligations exclusively of the Company. Because
the operations of the Company are currently conducted through subsidiaries, the
cash flow and the consequent ability to service debt of the Company, including
the Debt Securities, are dependent, in part, upon the earnings of its
subsidiaries and the distribution of those earnings to the Company or upon loans
or other payments of funds by those subsidiaries to the Company. The
subsidiaries are separate and distinct legal entities and have no obligation,
contingent or otherwise, to pay any amounts due pursuant to the Debt Securities
or to make any funds available therefor, whether by dividends, loans or other
payments. In addition, the payment of dividends and the making of loans and
advances to the Company by its subsidiaries may be subject to statutory or
contractual restrictions, are contingent upon the earnings of those subsidiaries
and are subject to various business considerations.
Although the Senior Indenture limits the incurrence of such
indebtedness, as described above under "--Certain Covenants Applicable to Senior
Debt Securities," the Debt Securities will be effectively subordinated to all
indebtedness and other liabilities, including current liabilities and
commitments under leases, if any, of the Company's subsidiaries. Any right of
the Company to receive assets of any of its subsidiaries upon liquidation or
reorganization of the subsidiary (and the consequent right of the holders of the
Debt Securities to participate in those assets) will be effectively subordinated
to the claims of that subsidiary's creditors (including trade creditors), except
to the extent that the Company is itself recognized as a creditor of such
subsidiary, in which case the claims of the Company would still be subordinated
to any security interests in the assets of such subsidiary and any indebtedness
of such subsidiary senior to that held by the Company.
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No Restriction on Sale or Issuance of Stock of Subsidiaries
The Indentures contain no covenant that the Company will not sell,
transfer or otherwise dispose of any shares of, or securities convertible into,
or options, warrants or rights to subscribe for or purchase shares of, voting
stock of any of its subsidiaries, nor does it prohibit any subsidiary from
issuing any shares of, securities convertible into, or options, warrants or
rights to subscribe for or purchase shares of, voting stock of such subsidiary.
Consolidation, Merger and Sale of Assets
The Company, without the consent of the Holder or Holders of any of the
outstanding Debt Securities, may consolidate or merge with or into, or convey,
transfer or lease its properties and assets substantially as an entirety, to any
corporation, partnership or trust organized under the laws of any domestic
jurisdiction, provided, that, the successor corporation assumes the Company's
obligations on the Debt Securities and under the Indentures and that after
giving effect to the transaction, no Event of Default, and no event which, after
notice or lapse of time would become an Event of Default, has occurred and is
continuing, and that certain other conditions are met. (Section 801).
Events of Default
Events of Default with respect to Debt Securities of any series issued
thereunder are defined in the Indentures as being: (i) default for thirty days
in payment when due of any interest on any Debt Security of that series ; (ii)
default in payment when due of principal of or premium, if any, on any Debt
Security of that series at its Stated Maturity or on redemption or otherwise, or
in the making of a mandatory sinking fund payment of any Debt Securities of that
series; (iii) default for sixty days after notice to the Company by the Trustee
for such series, or to the Company and the Trustee by the Holders of at least
25% in aggregate principal amount of the Debt Securities of such series then
outstanding, in the performance of any other covenant or warranty of the Company
in the Debt Securities of that series, in the Indentures or in any supplemental
indenture under which the Debt Securities of that series may have been issued;
(iv) acceleration of the maturity of any Debt of the Company or any Restricted
Subsidiary (including Debt Securities of any other series) if the aggregate
principal amount (or, if applicable, issue price plus accrued original issue
discount) of the Debt the maturity of which has been accelerated exceeds five
percent (5%) of the aggregate principal amount of the Funded Debt of the Company
and its Subsidiaries then outstanding and such Debt is not paid, or such
acceleration is not rescinded or annulled or such acceleration is not contested
by appropriate proceedings and all consequences thereof that would have a
material adverse effect on the Company stayed, within 30 days after receipt of
written notice as provided in the Indenture; provided, however, that if, after
the expiration of such 30-day period, the event of default that resulted in the
acceleration of the maturity of such Debt of the Company or such Restricted
Subsidiary is remedied or cured by the Company or such Restricted Subsidiary or
waived by the holders of such Debt in any authorized manner or otherwise ceases
to exist, then the Event of Default described in this clause (iv) resulting from
such acceleration will be deemed cured and not continuing; and (v) certain
events of bankruptcy, insolvency or reorganization of the Company or any
Restricted Subsidiary. (Section 501). Events of Default with respect to a
specified series of Debt Securities may be added to the Indenture under which
the series is issued and, if so added, will be described in the applicable
Prospectus Supplement. (Section 301). No Event of Default with respect to a
particular series of Debt Securities issued under the Indentures necessarily
constitutes an Event of Default with respect to any other series of Debt
Securities issued thereunder.
The Indentures provide that the Trustee for any series of Debt
Securities shall, within 90 days after the occurrence of a default with respect
to Debt Securities of that series, give to the Holders of the Debt Securities of
that series notice of all uncured defaults known to it, provided, that, except
in the case of default in payment on the Debt Securities of that series, the
Trustee may withhold the notice if and so long as it in good faith determines
that withholding such notice is in the interest of the holders of the Debt
Securities of that series, provided, further, that no notice of a default made
in the performance of any covenant or a breach of any warranty contained in the
Indentures, with certain limited exceptions, shall be given until at least 60
days after the occurrence thereof. "Default" means any event which is, or, after
notice or lapse of time or both, would become, an Event of Default. (Section
602).
If an Event of Default with respect to Debt Securities of any series at
the time outstanding occurs and is continuing, either the Trustee or the Holder
or Holders of at least 25% in aggregate principal amount of the outstanding Debt
Securities of that series may declare the principal amount (or, if the Debt
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
the Debt Securities of that series to be due and payable immediately. At any
time after a declaration of acceleration with respect to Debt Securities of any
series has been made, but before a judgment or decree for payment of the money
due has been obtained, the Holder or Holders of a majority in aggregate
principal amount of outstanding Debt Securities of that series may, under
certain circumstances, rescind and annul such acceleration. (Section 502).
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The Indentures provide that, subject to the duty of the Trustees in the
case of an Event of Default to act with the required standard of care, the
Trustees will be under no obligation to exercise any rights or powers under the
Indentures at the request or direction of any of the Holders, unless such Holder
or Holders shall have offered to the Trustees indemnity reasonably satisfactory
to the Trustee. (Sections 601 and 603). Subject to such provisions for the
indemnification of the Trustees, the Holder or Holders of at least a majority in
aggregate principal amount of the outstanding Debt Securities of each series
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustees, or exercising any trust or
power conferred on the Trustees with respect to the Debt Securities of that
series. (Section 512).
The Company is required to furnish to the Trustees annually a statement
as to the performance by the Company of certain of its obligations under the
Indentures and as to any default in such performance. (Section 1005).
Global Securities
The Debt Securities of a series may be issued in the form of one or
more fully registered securities in global form (each a "Global Security") that
will be deposited with, or on behalf of, a depositary (the "Depositary Bank")
identified in the Prospectus Supplement relating to such series and will be
registered in the name of the Depositary Bank or its nominee. In such case, one
or more Global Securities will be issued in a denomination or aggregate
denominations equal to the aggregate principal amount of outstanding Debt
Securities of the series represented by such Global Security or Securities.
Unless and until any such Global Security is exchanged in whole or in part for
Debt Securities in definitive certificated form, such Global Security may not be
transferred except as a whole by the Depositary Bank for such Global Security to
a nominee of such Depositary Bank or by a nominee of such Depositary Bank to
such Depositary Bank or another nominee of such Depositary Bank or by such
Depositary Bank or any such nominee to a successor of such Depositary Bank or a
nominee of such successor and except as described in the applicable Prospectus
Supplement. (Section 303).
The specific terms of the depositary arrangement with respect to a
series of Debt Securities to be represented by a Global Security will be
described in the Prospectus Supplement relating to such series. The Company
anticipates that the following provisions will apply to all depositary
arrangements.
Upon the issuance of any Global Security, and the deposit of such
Global Security with or on behalf of the Depositary Bank for such Global
Security, the Depositary Bank will credit, on its book-entry registration and
transfer system, the respective principal amounts of the Debt Securities
represented by such Global Security to the accounts of institutions
("participants") that have accounts with such Depositary Bank or its nominee.
The accounts to be credited will be designated by the underwriters or agents
engaging in the distribution or placement of such Debt Securities or by the
Company, if such Debt Securities are offered and sold directly by the Company.
Ownership of beneficial interests in such Global Security will be limited to
participants or persons that may hold interests through participants. Ownership
of beneficial interests by participants in such Global Security will be shown by
book-keeping entries on, and the transfer of that ownership interest will be
effected only through book-keeping entries to, records maintained by the
Depositary Bank or its nominee for such Global Security. Ownership of beneficial
interests in such Global Security by persons that hold through participants will
be shown by book-keeping entries on, and the transfer of that ownership interest
among or through such participants will be effected only through book-keeping
entries to, records maintained by such participants. The laws of some
jurisdictions require that certain purchasers of securities take physical
delivery of such securities in definitive certificated form rather than
book-entry form. Such laws may impair the ability to own, transfer or pledge
beneficial interests in any Global Security.
So long as the Depositary Bank for a Global Security or its nominee is
the registered owner of such Global Security, such Depositary Bank or such
nominee, as the case may be, will be considered the sole owner or holder of the
Debt Securities represented by such Global Security for all purposes under the
Indenture. Except as set forth below or otherwise specified in the applicable
Prospectus Supplement, owners of beneficial interests in a Global Security will
not be entitled to have Debt Securities of the series represented by such Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of Debt Securities of such series in definitive certificated
form and will not be considered the holders thereof for any purposes under the
Indenture. Accordingly, each person owning a beneficial interest in such Global
Security must rely on the procedures of the Depositary Bank and, if such person
is not a participant, on the procedures of the participant through which such
person directly or indirectly owns its interest, to exercise any rights of a
holder under the Indenture. The Indenture provides that the Depositary Bank may
grant proxies and otherwise authorize participants 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. (Section 104). The
Company understands that under existing industry practices, if the Company
requests any action of holders or any owner of a beneficial interest in such
Global Security desires to give any notice or take any action that a holder is
entitled to give or take under the Indenture, the Depositary Bank for such
Global Security would authorize the participants holding the relevant beneficial
interest to give such notice or take such action, and such participants would
authorize beneficial owners owning through such participants to give such notice
or take such action or would otherwise act upon the instructions of beneficial
owners owning through them.
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Principal and any premium and interest payments on Debt Securities
represented by a Global Security registered in the name of a Depositary Bank or
its nominee will be made to such Depositary Bank or its nominee, as the case may
be, as the registered owner of such Global Security. None of the Company, the
Trustee or any paying agent for such Debt Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in any Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests. (Section 308).
The Company expects that the Depositary Bank for any series of Debt
Securities represented by a Global Security, upon receipt of any payment of
principal, premium or interest, will credit immediately participants' accounts
with payments in amounts proportionate to their respective beneficial interests
in the principal amount of such Global Security as shown on the records of such
Depositary Bank. The Company also expects that payments by participants to
owners of beneficial interests in such Global Security or Securities held
through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts of
customers registered in "street name," and will be the responsibility of such
participants.
If the Depositary Bank for any series of Debt Securities represented by
a Global Security is at any time unwilling or unable to continue as Depositary
Bank and a successor Depositary Bank is not appointed by the Company within 90
days, the Company will issue such Debt Securities in definitive certificated
form in exchange for such Global Security. In addition, the Company may at any
time and in its sole discretion determine not to have the Debt Securities of a
series represented by one or more Global Securities and, in such event, will
issue Debt Securities of such series in definitive certificated form in exchange
for the Global Security representing such series of Debt Securities. (Section
305).
Further, an owner of a beneficial interest in a Global Security
representing Debt Securities of a series may, on terms acceptable to the Company
and the Depositary Bank for such Global Security, receive Debt Securities of
such series in definitive certificated form, if the Company so specifies with
respect to the Debt Securities of such series. In any such instance, an owner of
a beneficial interest in a Global Security will be entitled to have Debt
Securities of the series represented by such Global Security equal in principal
amount to such beneficial interest registered in its name and will be entitled
to physical delivery of such Debt Securities in definitive certificated form.
Debt Securities of such series so issued in definitive certificated form will,
except as set forth in the applicable Prospectus Supplement, be issued in
denominations of $1,000 and integral multiples thereof and will be issued in
registered form. (Section 305).
Modification and Waiver
Modifications and amendments of the Indentures may be made by the
Company and the applicable Trustee with the consent of the Holder or Holders of
a majority in principal amount of the Debt Securities of all affected series;
provided, however, that no such modification or amendment may, without the
consent of the Holder or Holders of all of the outstanding Debt Securities
affected thereby, (i) change the stated maturity date of the principal of, or
any installment of principal of, or premium, if any, or interest, if any, on,
any Debt Security; (ii) reduce the principal amount of, or premium, if any, or
interest, if any, on, any Debt Security, or change the method of calculation
thereon or reduce the amount payable on redemption thereof; (iii) reduce the
amount of principal of a Debt Security payable upon acceleration of the maturity
thereof; (iv) change the currency of payment of principal of, or premium, if
any, or interest, if any, on, any Debt Security; (v) impair the rights of any
holder of any Debt Securities to conversion rights; (vi) impair the right to
institute suit for the enforcement of any payment on or with respect to any Debt
Security; or (vii) reduce the percentage in principal amount of the Debt
Security, the consent of whose Holder or Holders is required for modification or
amendment of the Indentures or for waiver of compliance with certain provisions
of the Indentures or for waiver of certain defaults. (Sections 901 and 902).
The Holder or Holders of a majority in principal amount of the Debt
Securities of all affected series may, on behalf of the Holder or Holders of
such Debt Securities, waive compliance by the Company with certain restrictive
provisions of the Indentures. The Holder or Holders of a majority in principal
amount of the Debt Securities of all affected series also may, on behalf of the
Holder or Holders of all such Debt Securities, waive any past default under the
Indentures with respect to such Debt Securities, except a default in the payment
of the principal, or premium, if any, or interest on, any Debt Security or in
respect of a provision that under the Indentures cannot be modified or amended
without the consent of the Holder or Holders of all of the outstanding Debt
Securities affected thereby. (Section 513).
Regarding the Trustees
The Bank of New York is the Trustee under the Senior Indenture.
Notice to the Senior Trustee should be directed to The
Bank of New York, 101 Barclay Street, Floor 21 West, New York, New York 10286,
Attention: Corporate Trust Trustee Administration.
The Bank of New York is the Trustee under the Subordinated
Indenture. Notice to the Subordinated Trustee should be
directed to The Bank of New York, 101 Barclay Street, Floor 21 West, New York,
New York 10286, Attention: Corporate Trust Trustee
Administration.
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DESCRIPTION OF PREFERRED STOCK
General
The following summary does not purport to be complete and is subject in
all respects to applicable Virginia law and the Company's Amended and Restated
Articles of Incorporation, as amended (the "Articles"), and Bylaws.
The Company is authorized by its Articles to issue 5,000,000 shares of
Preferred Stock. The Board of Directors is authorized to designate with respect
to each new series of Preferred Stock the number of shares in each series, the
dividend rates and dates of payment, voluntary and involuntary liquidation
preferences, redemption prices, whether or not dividends shall be cumulative
and, if cumulative, the date or dates from which the same shall be cumulative,
the sinking fund provisions, if any, for redemption or purchase of shares, the
rights, if any, and the terms and conditions on which shares can be converted
into or exchanged for, or the rights to purchase, shares of any other class or
series, and the voting rights, if any. Any Preferred Stock issued will rank
prior to the Common Stock as to dividends and as to distributions in the event
of liquidation, dissolution or winding up of the Company. The ability of the
Board of Directors to issue Preferred Stock, while providing flexibility in
connection with possible acquisitions and other corporate purposes, could, among
other things, adversely affect the voting powers of holders of Common Stock and,
under certain circumstances, may discourage an attempt by others to gain control
of the Company. The Company may amend its Articles from time to time to increase
the number of authorized shares of Preferred Stock. Any such amendment would
require the approval of the holders of more than two-thirds of the outstanding
shares of Common Stock and the approval of the holders of more than two-thirds
of the outstanding shares of all series of Preferred Stock voting together as a
separate voting group without regard to series. As of the date of this
Prospectus, the Company had no shares of Preferred Stock outstanding.
The Prospectus Supplement relating to each series of the Preferred
Stock will describe the following terms thereof: (i) title and stated value of
such series; (ii) the number of shares in such series; (iii) the dividend
payment dates and the dividend rate or method of determination or calculation of
such terms applicable to the series; (iv) applicable redemption provisions, if
any; (v) sinking fund or purchase fund provisions, if any; (vi) the fixed
liquidation price and fixed liquidation premium, if any, applicable to the
series; (vii) the rate or basis of exchange or conversion into other securities
or method of determination thereof applicable to the series, if any; (viii) the
conversion rights, if any; (ix) applicable voting rights; and (x) any other
terms, conditions and provisions applicable thereto.
Redemption
A series of Preferred Stock may be redeemable, in whole or in part, at
the option of the Company, and may be subject to mandatory redemption pursuant
to a sinking fund, in each case upon terms, at the times and at the redemption
prices set forth in the Prospectus Supplement relating to such series.
The Prospectus Supplement relating to a series of Preferred Stock that
is subject to mandatory redemption shall specify the number of shares of such
series of Preferred Stock that shall be redeemed by the Company in each year
commencing after a date to be specified, at a redemption price per share to be
specified, together with an amount equal to any accrued and unpaid dividends
thereon to the date of redemption.
If fewer than all the outstanding shares of any series of Preferred
Stock are to be redeemed, whether by mandatory or optional redemption, the
selection of the shares to be redeemed shall be determined by lot or pro rata as
may be determined by the Board of Directors or a duly authorized committee
thereof, or by any other method which may be determined by the Board of
Directors or such committee to be equitable. From and after the date of
redemption (unless default shall be made by the Company in providing for the
payment of the redemption price), dividends shall cease to accrue on the shares
of Preferred Stock called for redemption and all rights of the holders thereof
(except the right to receive the redemption price) shall cease.
Conversion Rights; Preemptive Rights
The Prospectus Supplement for any series of Preferred Stock will state
the terms, if any, on which shares of that series are convertible into shares of
Common Stock or another series of preferred stock of the Company. The Preferred
Stock will have no preemptive rights.
Dividend Rights
The holders of the Preferred Stock of each series shall be entitled to
receive, if and when declared payable by the Board of Directors, out of assets
available therefor, dividends at, but not exceeding, the dividend rate for such
series (which may be fixed or variable), payable at such intervals and on such
dates as are provided in the resolution of the Board of Directors creating such
series. If such intervals and dividend payment dates shall vary from time to
time for such series, such resolution shall set forth the method by which such
intervals and such dates shall be determined. Such dividends on Preferred Stock
shall be paid before any dividends, other than a dividend payable in Common
Stock of the Company, may be paid upon or set apart for any shares of capital
stock ranking junior to the Preferred Stock in respect of dividends or
liquidation rights (referred to in this Prospectus as "stock ranking junior to
the Preferred Stock").
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Voting Rights
Except as indicated below or in the Prospectus Supplement relating to a
particular series of Preferred Stock, or except as expressly required by the
laws of the Commonwealth of Virginia or other applicable law, the holders of the
Preferred Stock will not be entitled to vote. Except as indicated in the
Prospectus Supplement relating to a particular series of Preferred Stock, each
such share will be entitled to one vote on matters on which holders of such
series of the Preferred Stock are entitled to vote. However, as more fully
described below under "Depositary Shares," if the Company elects to issue
Depositary Shares representing a fraction of a share of a series of Preferred
Stock, each such Depositary Share will, in effect, be entitled to such fraction
of a vote, rather than a full vote. Because each full share of any series of
Preferred Stock shall be entitled to one vote, the voting power of such series,
on matters on which holders of such series and holders of other series of
preferred stock are entitled to vote as a single class, shall depend on the
number of shares in such series, not the aggregate liquidation preference or
initial offering price of the shares of such series of Preferred Stock.
In addition to the foregoing voting rights, under the Virginia Stock
Corporation Act (the "VSCA") as now in effect, the holders of Preferred Stock
will have the voting rights set forth above under "Description of Preferred
Stock - General" with respect to amendments to the Articles that would increase
the number of authorized shares of Preferred Stock of the Company.
Liquidation Rights
In the event of any liquidation, dissolution or winding up of the
Company, the holders of Preferred Stock shall be entitled to receive, for each
share thereof, the fixed liquidation or stated value for the respective series
together in all cases with all dividends accrued or in arrears thereon, before
any distribution of the assets shall be made to the holders of any stock ranking
junior to the Preferred Stock. If the assets distributable among the holders of
Preferred Stock should be insufficient to permit the payment of the full
preferential amounts fixed for all series, then the distribution shall be made
among the holders of each series ratably in proportion to the full preferential
amounts to which they are respectively entitled.
Depositary Shares
General. The Company may, at its option, elect to offer fractional
shares of Preferred Stock, rather than full shares of Preferred Stock. In the
event such option is exercised, the Company will issue to the public receipts
for Depositary Shares, each of which will represent a fraction (to be set forth
in the Prospectus Supplement relating to a particular series of Preferred Stock)
of a share of a particular series of Preferred Stock as described below.
The shares of any series of Preferred Stock represented by Depositary
Shares will be deposited under a Deposit Agreement (the "Deposit Agreement")
between the Company and a bank or trust company selected by the Company having
its principal office in the United States and having a combined capital and
surplus of at least $50,000,000 (the "Depositary Bank"). Subject to the terms of
the Deposit Agreement, each owner of a Depositary Share will be entitled, in
proportion to the applicable fraction of a share of Preferred Stock represented
by such Depositary Share, to all the rights and preferences of the Preferred
Stock represented thereby (including dividend, voting, redemption and
liquidation rights).
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement ("Depositary Receipts"). Depositary Receipts
will be distributed to those persons purchasing the fractional shares of
Preferred Stock in accordance with the terms of the offering. If Depositary
Shares are issued, copies of the forms of Deposit Agreement and Depositary
Receipt will be incorporated by reference in the Registration Statement of which
this Prospectus is a part, and the following summary is qualified in its
entirety by reference to such documents.
Pending the preparation of Depositary Receipts in definitive form, the
Depositary Bank may, upon the written order of the Company, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary Receipts but
not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts will be
exchangeable for definitive Depositary Receipts at the Company's expense.
Withdrawal of Preferred Stock. Upon surrender of the Depositary
Receipts to the Depositary Bank, the owner of the Depositary Shares evidenced
thereby is entitled to delivery at such office of the number of whole shares of
Preferred Stock represented by such Depositary Shares. If the Depositary
Receipts delivered by the holder evidence a number of Depositary Shares in
excess of the number of Depositary Shares representing the number of whole
shares of Preferred Stock to be withdrawn, the Depositary Bank will deliver to
such holder at the same time a new Depositary Receipt evidencing such excess
number of Depositary Shares. Owners of Depositary Shares will be entitled to
receive only whole shares of Preferred Stock. In no event will fractional shares
of Preferred Stock (or cash in lieu thereof) be distributed by the Depositary
Bank. Consequently, a holder of a Depositary Receipt representing a fractional
share of Preferred Stock would be able to liquidate his position only by sale to
a third party (in a public trading market transaction or otherwise), unless the
Depositary Shares are redeemed by the Company or converted by the holder.
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Dividends and Other Distributions. The Depositary Bank will distribute
all cash dividends or other cash distributions received in respect of the
Preferred Stock to the record holders of Depositary Shares relating to such
Preferred Stock in proportion to the number of such Depositary Shares owned by
such holders.
In the event of a distribution other than in cash, the Depositary Bank
will distribute property received by it to the record holders of Depositary
Shares entitled thereto, unless the Depositary Bank determines that it is not
feasible to make such distribution, in which case the Depositary Bank may, with
the approval of the Company, sell such property and distribute the net proceeds
from such sale to such holders.
Redemption of Depositary Shares. If a series of Preferred Stock
represented by Depositary Shares is subject to redemption, the Depositary Shares
will be redeemed from the proceeds received by the Depositary Bank resulting
from the redemption, in whole or in part, of such series of Preferred Stock held
by the Depositary Bank. The redemption price per Depositary Share will be equal
to the applicable fraction of the redemption price per share payable with
respect to such series of Preferred Stock. Whenever the Company redeems shares
of Preferred Stock held by the Depositary Bank, the Depositary Bank will redeem
as of the same redemption date the number of Depositary Shares representing the
shares of Preferred Stock so redeemed. If fewer than all the Depositary Shares
are to be redeemed, the Depositary Shares to be redeemed will be selected by lot
or pro rata as may be determined by the Depositary Bank.
Voting the Preferred Stock. Upon receipt of notice of any meeting at
which the holders of Preferred Stock are entitled to vote, the Depositary Bank
will mail the information contained in such notice of meeting to the record
holders of the Depositary Shares relating to such Preferred Stock. Each record
holder of such Depositary Shares on the record date (which will be the same date
as the record date for the Preferred Stock) will be entitled to instruct the
Depositary Bank as to the exercise of the voting rights pertaining to the amount
of Preferred Stock represented by such holder's Depositary Shares. The
Depositary Bank will endeavor, insofar as practicable, to vote the amount of
Preferred Stock represented by such Depositary Shares in accordance with such
instructions, and the Company will agree to take all action that may be deemed
necessary by the Depositary Bank in order to enable the Depositary Bank to do
so. The Depositary Bank may abstain from voting shares of Preferred Stock to the
extent it does not receive specific instructions from the holders of Depositary
Shares representing such Preferred Stock.
Amendment and Termination of the Depositary Agreement. The form of
Depositary Receipt evidencing the Depositary Shares and any provision of the
Deposit Agreement may at any time be amended by agreement between the Company
and the Depositary Bank. However, any amendment that materially and adversely
alters the rights of the holders of Depositary Shares will not be effective
unless such amendment has been approved by the holders of at least a majority of
the Depositary Shares then outstanding. The Deposit Agreement may be terminated
by the Company or the Depositary Bank only if (i) all outstanding Depositary
Shares have been redeemed or (ii) there has been a final distribution in respect
of the Preferred Stock in connection with any liquidation, dissolution or
winding up of the Company and such distribution has been distributed to the
holders of Depositary Receipts.
Charges of Depositary Bank. The Company will pay all transfer and other
taxes and governmental charges arising solely from the existence of the
depositary arrangements. The Company will pay charges of the Depositary Bank in
connection with the initial deposit of the Preferred Stock and any redemption of
the Preferred Stock. Holders of Depositary Receipts will pay other transfer and
other taxes and governmental charges and such other charges, including any fee
for the withdrawal of shares of Preferred Stock upon surrender of Depositary
Receipts, as are expressly provided in the Deposit Agreement to be for their
accounts.
Miscellaneous. The Depositary Bank will forward to holders of
Depositary Receipts all reports and communications from the Company that are
delivered to the Depositary Bank and that the Company is required to furnish to
the holders of Preferred Stock.
Neither the Depositary Bank nor the Company will be liable if it is
prevented or delayed by law or any circumstance beyond its control in performing
its obligations under the Deposit Agreement. The obligations of the Company and
the Depositary Bank under the Deposit Agreement will be limited to performance
in good faith of their duties thereunder and they will not be obligated to
prosecute or defend any legal proceeding in respect of any Depositary Shares or
Preferred Stock unless satisfactory indemnity is furnished. They may rely upon
written advice of counsel or accountants, or upon information provided by
persons presenting Preferred Stock for deposit, holders of Depositary Receipts
or other persons believed to be competent and on documents believed to be
genuine.
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Resignation and Removal of Depositary Bank. The Depositary Bank may
resign at any time by delivering to the Company notice of its election to do so,
and the Company may at any time remove the Depositary Bank, any such resignation
or removal to take effect upon the appointment of a successor Depositary Bank
and its acceptance of such appointment. Such successor Depositary Bank must be
appointed within 60 days after delivery of the notice of resignation or removal
and must be a bank or trust company having its principal office in the United
States and having a combined capital and surplus of at least $50,000,000.
Miscellaneous
The Preferred Stock, when issued and full consideration is received
therefor, will be fully paid and non-assessable.
DESCRIPTION OF COMMON STOCK
General
The following summary does not purport to be complete and is subject in
all respects to applicable Virginia law and the Company's Articles and Bylaws.
The holders of validly issued and outstanding shares of Common Stock
are entitled to one vote per share on each matter that is properly presented to
shareholders for a vote. A majority of the votes cast decides each matter
presented at a meeting of the shareholders (assuming a quorum is present),
except for the election of directors, which requires a plurality of the votes
cast, and certain matters for which a different vote is required by express
provision of law, the Articles or the Bylaws. No cumulative voting is permitted.
The holders of the Common Stock have no preemptive rights and have no
rights to convert their Common Stock into any other securities. In addition,
there are no redemption or sinking fund provisions applicable to the Common
Stock.
In the event of a liquidation, dissolution or winding up of the
Company, each share of Common Stock entitles its holder to participate ratably
in any assets remaining after payment of all liabilities and obligations of the
Company and all preferential amounts to which the holders of shares of preferred
stock, or any other class of stock having prior rights, may be entitled.
Subject to the rights of any holders of shares of any class of stock
having prior rights as to dividends, the holders of the Common Stock are
entitled to receive ratably such dividends as the Board of Directors may declare
out of funds legally available therefor, when and if so declared. The payment by
the Company of dividends, if any, rests within the discretion of the Company's
board of directors and will depend upon general business conditions encountered
by the Company, its earnings, financial condition and capital requirements and
such factors as the Company's board of directors may deem relevant. The Company
has entered into certain credit agreements that include financial covenants
restricting the payment of dividends.
Transfer Restrictions
The Articles establish certain restrictions on the original issuance
and transfer of the Common Stock.
Shares of the Common Stock may not be transferred to any person who,
immediately following such transfer would, together with such person's
Affiliates and Associates (each, as defined below), be the beneficial owner of
more than 20% of such shares, unless the proposed transfer is approved in
advance by the Company's board of directors. The Articles provide that an
attempt to transfer shares of the Common Stock without prior approval by the
Company's board of directors to any person who would thereafter own more than
20% of such shares shall be null and void and shall not be recognized by the
Company for any purpose, except that the Company's board of directors may elect
to recognize such attempted transfer and simultaneously redeem such shares at
their "restricted share redemption price" (generally the lowest price actually
paid by the transferee for shares of the Common Stock during the two year period
immediately before the attempted transfer or, if such price cannot be determined
readily by the Company's board of directors, then the lowest closing price for
such shares in their principal trading market during such period).
The Articles require record holders of the Common Stock to disclose to
the Company upon demand information with respect to beneficial ownership of the
shares then held by them. The Company may enforce the restrictions on transfer
of shares of the Common Stock by polling registered holders with respect to the
beneficial ownership of their shares and by monitoring filings with the
Commission by persons beneficially owning 5% or more of the Common Stock as
required pursuant to Section 13(d) of the Exchange Act.
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Trading Market and Transfer Agent
Shares of the Common Stock are listed on the New York Stock Exchange
under the symbol RFH. The transfer agent and registrar for shares of the Common
Stock is First Union National Bank of North Carolina, 1525 West W.T. Harris
Boulevard, Charlotte, North Carolina 28288-1153.
Certain Provisions Of Virginia Law, The Articles And Bylaws
Board of Directors; Removal; Vacancies
The VSCA provides that the board of directors of a Virginia corporation
shall consist of a number of individuals specified in or fixed in accordance
with the bylaws of the corporation or, if not specified in or fixed in
accordance with the bylaws, then a number specified in or fixed in accordance
with the articles of incorporation of the corporation.
The Bylaws provide that the number of members of the Company's board of
directors shall be 11 and shall be subject to change as provided in the
Articles. The Articles provide the Company's board of directors may amend the
Bylaws from time to time to increase or decrease the number of directors by up
to 30% of the number of directors last elected by the Company's shareholders;
provided, that any decrease in the number of directors may not shorten an
incumbent director's term or reduce any quorum or voting requirements until such
person ceases to be a director.
The Articles provide further that no person shall be eligible to serve
as a member of the Company's board of directors if such person is "related" to
an existing director or nominee. A person is deemed to be "related" to an
existing director or nominee, if such person is an "Affiliate" or an "Associate"
of an existing director or nominee or if such person and an existing director
are Affiliates, Associates or employees of a single "Customer." The Articles
define an "Affiliate" as any person that directly or indirectly controls, is
controlled by or is under the common control with the person specified. The
Articles define an "Associate" of any person as including (a) a corporation of
which such person owns beneficially 10% or more of any class of equity
securities, (b) a trust or an estate in which such person has a substantial
beneficial interest or as to which such person serves as a fiduciary and (c) a
relative or spouse of such person who shares the same home. For purposes of this
provision, a "Customer" means any person engaged in the sale of grocery products
for which subsidiaries of the Company, taken in the aggregate, represent such
person's primary source of supply for such products (or such other persons as
may be determined by a majority of the Company's board of directors).
Pursuant to the VSCA, a member of the Company's board of directors may
be removed with or without cause by a majority of the votes entitled to be cast
at a meeting of shareholders called expressly for that purpose at which a quorum
is present. If a director is elected by a voting group of shareholders, only the
shareholders of that voting group may participate in the vote to remove such
director.
The Bylaws provide that any vacancy occurring on the Company's board of
directors may be filled by the affirmative vote of the majority of the remaining
directors, though less than a quorum of the Company's board of directors, and
the term of any director so elected shall expire at the next annual meeting of
shareholders and when his successor is elected.
The Bylaws provide that, subject to the rights of holders of any class
of preferred stock, a shareholder may nominate one or more persons for election
as directors at a meeting only if written notice of such shareholder's
nomination has been given to the Secretary of the Company not less than fifty
nor more than seventy-five days before the first anniversary of the date of the
Company's proxy statement in connection with the last meeting of shareholders
called for the election of directors. Each notice must contain: (a) the name,
age, business address and, if known, residential address of each nominee; (b)
the principal occupation or employment of each nominee; and (c) the number and
class of capital shares of the Company beneficially owned by each nominee. The
Secretary of the Company delivers all such notices to the Nominating Committee
of the Company's board of directors for review. After such review, the
Nominating Committee makes its recommendation regarding nominees to the
Company's board of directors. The chairman of any shareholders' meeting called
for the election of directors may determine that a shareholder nomination was
not made in accordance with the procedures and declare to the meeting that the
defective nomination shall be disregarded.
For business to be properly brought before an annual meeting by a
shareholder, the shareholder must have given timely notice thereof in writing to
the Secretary of the Company. To be timely, a shareholder's notice must be
given, either by personal delivery or by mail, to the Secretary not less than
sixty days before the first anniversary of the date of the Company's proxy
statement in connection with the last annual meeting. The notice must contain as
to each matter the shareholder proposes to bring before the annual meeting: (a)
a brief description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting; (b)
the name and record address of the shareholder proposing such business; (c) the
class, series and number of the Company's shares beneficially owned by the
shareholder; and (d) any material interest of the shareholder in such business.
If business is brought before an annual meeting without complying with these
provisions, the chairman of the meeting shall declare that the business was not
properly brought before the meeting, and such business shall not be transacted.
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Liability of Officers and Directors
The Articles provide that no officer or director shall be liable to the
Company or its shareholders for monetary damages except for liability resulting
from such person's having engaged in willful misconduct or a knowing violation
of the criminal law or of any federal or state securities laws.
Virginia law permits, and the Articles require, indemnification of the
Company's directors and officers in a variety of circumstances, which may
include liabilities under the Securities Act. The Articles require
indemnification of (i) any person who was or is a party to any proceeding by
reason of the fact that he is or was an officer or director of the Company, and
(ii) any director or officer who is or was serving at the request of the Company
as a director, trustee, partner or officer of another entity, unless in each
case such person engaged in willful misconduct or a knowing violation of the
criminal law. In addition, Virginia law may under certain circumstances limit
the liability of officers and directors in a shareholder or derivative
proceeding.
Insofar as indemnification for liabilities under the Securities Act may
be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions or otherwise, the Company has been informed
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
Anti-Takeover Statutes
The VSCA contains provisions relating to "control share acquisitions,"
which are transactions causing the voting strength of any person acquiring
beneficial ownership of shares of a public corporation in Virginia to meet or
exceed certain threshold percentages (20 percent, 33 1/3 percent or 50 percent)
of the total votes entitled to be cast for the election of directors. Shares
acquired in a control share acquisition have no voting rights unless (a) the
voting rights are granted by a majority vote of all outstanding shares other
than those held by the acquiring person or any officer or employee director of
the corporation, or (b) the articles of incorporation or bylaws of the
corporation provide that these Virginia law provisions do not apply to
acquisitions of its shares. An acquiring person that owns 5% or more of the
corporation's voting stock may require that a special meeting of the
shareholders be held, within 50 days of the acquiring person's request, to
consider the grant of voting rights to the shares acquired in the control share
acquisition. If voting rights are not granted and the corporation's articles of
incorporation or bylaws so provide, the acquiring person's shares may be
repurchased by the corporation, at its option, at a price per share equal to the
acquiring person's cost. The VSCA grants dissenters' rights to any shareholder
who objects to a control share acquisition that is approved by a vote of
disinterested shareholders and that gives the acquiring person control of a
majority of the corporation's voting shares. The VSCA's control share
acquisition provisions were designed to deter certain takeovers of Virginia
public corporations.
The board of directors of a Virginia corporation may adopt a bylaw
providing that the control share provisions of the VSCA do not apply to
acquisitions of the corporation's shares. Such a bylaw may be adopted at any
time up to four days following receipt by the corporation of notice of a
proposed control share acquisition. The Company's board of directors has not
adopted any such bylaw opting-out of the control share acquisition provisions of
the VSCA, although there can be no assurance that the board will not determine
to do so in the future.
The VSCA also contains provisions governing "Affiliated Transactions."
In general, these provisions require approval of material acquisition
transactions between a Virginia corporation and any holder of more than 10
percent of any class of its outstanding voting shares (an "Interested
Shareholder") by the holders of at least two-thirds of the remaining voting
shares. Affiliated Transactions subject to this approval requirement include
mergers, share exchanges, material dispositions of corporate assets not in the
ordinary course of business, any dissolution of the corporation proposed by or
on behalf of an Interested Shareholder or any reclassification, including
reverse stock splits, recapitalization or merger of the corporation with its
subsidiaries, which increases the percentage of voting shares owned beneficially
by an Interested Shareholder by more than five percent. The Articles provide
that these provisions shall not be applicable to the Company.
Miscellaneous
The Common Stock, when issued and full consideration is received
therefor, will be fully paid and non-assessable.
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DESCRIPTION OF WARRANTS
The Company may issue Warrants for the purchase of shares of Preferred
Stock or Common Stock. Warrants may be issued independently or together with any
other Offered Securities and may be attached to or separate from such
securities. Each series of Warrants will be issued under a separate warrant
agreement (each a "Warrant Agreement") to be entered into between the Company
and a warrant agent ("Warrant Agent"). The Warrant Agent will act solely as an
agent of the Company in connection with the Warrants of such series and will not
assume any obligation or relationship of agency or trust for or with any holders
or beneficial owners of Warrants. The following sets forth certain general terms
and provisions of the Warrants offered hereby. Further terms of the Warrants and
the applicable Warrant Agreement will be set forth in the applicable Prospectus
Supplement. If Warrants are issued, copies of the forms of Warrant Agreement and
the certificate evidencing the Warrants will be incorporated by reference in the
Registration Statement of which this Prospectus is a part, and the following
summary is qualified in its entirety by reference to such documents.
The applicable Prospectus Supplement will describe the following terms,
where applicable, of the Warrants in respect of which this Prospectus is being
delivered: (i) the title of such Warrants; (ii) the aggregate number of such
Warrants; (iii) the price or prices at which such Warrants will be issued; (iv)
the designation, aggregate principal amount and terms of the securities
purchasable upon exercise of such Warrants; (v) the designation and terms of the
Offered Securities with which such Warrants are issued and the number of such
Warrants issued with each such security; (vi) if applicable, the date on and
after which such Warrants and the related securities will be separately
transferable; (vii) the price at which the securities purchasable upon exercise
of such Warrants may be purchased; (viii) the date on which the right to
exercise such Warrants shall commence and the date on which such right shall
expire; (ix) the minimum or maximum amount of such Warrants that may be
exercised at any one time; (x) information with respect to book-entry
procedures, if any; (xi) a discussion of material federal income tax
considerations; and (xii) any other terms of such Warrants, including terms,
procedures and limitations relating to the exchange and exercise of such
Warrants.
PLAN OF DISTRIBUTION
The Offered Securities may be sold for public offering to underwriters
or dealers, which may be a group of underwriters represented by one or more
managing underwriters, or through such firms or other firms acting alone or
through dealers. The Offered Securities may also be sold directly by the Company
or through agents to investors. The names of any agents, dealers or managing
underwriters, and of any underwriters, involved in the sale of the Offered
Securities in respect of which this Prospectus is being delivered, the
applicable agent's commission, dealer's purchase price or underwriter's discount
and the net proceeds to the Company from such sale will be set forth in the
Prospectus Supplement.
Any underwriting compensation paid by the Company to underwriters or
agents in connection with the offering of Offered Securities and any discounts,
concessions or commissions allowed by underwriters to participating dealers will
be set forth in the Prospectus Supplement. Underwriters, dealers and agents
participating in the distribution of the Offered Securities may be deemed to be
"underwriters" within the meaning of the Securities Act, and any discounts and
commissions received by them and any profit realized by them on resale of the
Offered Securities may be deemed to be underwriting discounts and commissions
under the Securities Act.
If an underwriter or underwriters are utilized in the sale of the
Offered Securities, the Company will execute an underwriting agreement with such
underwriter or underwriters at the time an agreement for such sale is reached.
The underwriting agreement will provide that the obligations of the underwriters
are subject to certain conditions precedent and that the underwriters with
respect to a sale of Offered Securities will be obligated to purchase all such
Offered Securities if any are purchased. In connection with the sale of Offered
Securities, underwriters may be deemed to have received compensation from the
Company in the form of underwriting discounts or commissions and may also
receive commissions from purchasers of Offered Securities for whom they may act
as agent. Underwriters may sell Offered Securities to or through dealers, and
such dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agent. Under such underwriting agreements, underwriters,
dealers and agents who participate in the distribution of the Offered
Securities, may be entitled to indemnification by the Company against certain
civil liabilities, including liabilities under the Securities Act or
contribution with respect to payments that the underwriters, dealers or agents
may be required to make in respect thereof. The underwriter or underwriters with
respect to an underwritten offering of Offered Securities 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.
Certain of the underwriters and their affiliates may be customers of,
engage in transactions with and perform services for the Company and its
subsidiaries and the Trustees in the ordinary course of business.
The Offered Securities may or may not be listed on a national
securities exchange or a foreign securities exchange. No assurances can be given
that there will be a market for the Offered Securities.
18
<PAGE>
LEGAL MATTERS
The validity of the Securities offered hereby will be passed upon for
the Company by Hunton & Williams, Richmond, Virginia, and for any underwriters,
agents or dealers by Cravath, Swaine & Moore, New York, New York.
EXPERTS
The consolidated balance sheets as of May 2, 1998, and May 3, 1997, and
the consolidated statements of earnings, shareholders' equity and cash flows for
the fiscal years ended May 2, 1998, and May 3, 1997, incorporated by reference
into the Company's Annual Report on Form 10-K for the fiscal year ended May 2,
1998, and the related financial statement schedule included therein, which are
incorporated by reference into this Prospectus, have been audited by Ernst &
Young LLP, independent auditors.
The consolidated statements of earnings, shareholders' equity and cash
flows for the fiscal year ended April 27, 1996, incorporated by reference into
the Company's Annual Report on Form 10-K for the fiscal year ended May 2, 1998,
which are incorporated by reference into this Prospectus, have been audited by
KPMG Peat Marwick LLP, independent auditors. The consolidated financial
statements for the fiscal year ended April 27, 1996, give effect to the merger
on October 15, 1995, of a wholly-owned subsidiary of Richfood with and into
Super Rite Corporation, which has been accounted for using the pooling of
interests method as described in the notes to the consolidated financial
statements.
The consolidated balance sheets of Farm Fresh, Inc. and subsidiaries as
of January 3, 1998, and December 28, 1996, and the related consolidated
statements of loss, stockholder's deficit and cash flows for the years then
ended, included in the Company's Current Report on Form 8-K, dated March 19,
1998, which are incorporated by reference into this Prospectus, have been
audited by KPMG Peat Marwick LLP, independent auditors. The report of KPMG Peat
Marwick LLP dated February 17, 1998 (except as to note 1, which is as of
February 20, 1998) contains an explanatory paragraph that states that Farm
Fresh, Inc. and subsidiaries filed a voluntary petition for relief under Chapter
11 of the United States Bankruptcy Code on January 7, 1998. The report further
states that the Bankruptcy filing, the leveraged financial structure of Farm
Fresh, Inc. and subsidiaries and its recurring net losses raised substantial
doubt about its ability to continue as a going concern, and that the
consolidated financial statements did not include any adjustments that may
result from the outcome of that uncertainty.
The consolidated balance sheets of Dart Group Corporation as of January
31, 1998, and January 31, 1997, and the consolidated statements of operations,
stockholders' equity and cash flows for each of the three fiscal years in the
period ended January 31, 1998, incorporated by reference in the Company's
Current Report on Form 8-K, dated May 13, 1998, which is incorporated by
reference into this Prospectus, have been audited by Arthur Andersen LLP,
independent auditors.
Each of the forgoing consolidated financial statements and schedule are
incorporated by reference herein in reliance upon the respective reports of such
firms given on their authority as experts in accounting and auditing.
19
<PAGE>
No dealer, salesperson or any other person has been authorized to give
any information or to make any representation other than those contained in this
Prospectus and, if given or made, such information or representation must not be
relied upon as having been authorized by the Company or any Underwriters.
Neither the delivery of this Prospectus nor any sale made hereunder shall, under
any circumstances, create an implication that there has been no change in the
affairs of the Company since the date as of which information is given in this
Prospectus. This Prospectus does not constitute an offer or solicitation by
anyone in any jurisdiction in which such offer or solicitation is not authorized
or in which the person making such offer or solicitation is not qualified to do
so or to anyone to whom it is unlawful to make such offer or solicitation.
--------------------
TABLE OF CONTENTS
Page
Available Information...........................2
Incorporation of Certain Documents by
Reference.......................................2
Forward-Looking Statements......................2
The Company.....................................3
Use of Proceeds.................................3
Certain Ratios..................................3
Description of Debt Securities..................4
Description of Preferred Stock.................12
Description of Common Stock....................15
Description of Warrants........................18
Plan of Distribution......................... 18
Legal Matters..................................19
Experts........................................19
--------------------
$500,000,000
[LOGO]
Debt Securities
Common Stock
Preferred Stock
Warrants
------------------------------
PROSPECTUS
------------------------------
, 1998
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Estimated expenses in connection with the issuance and distribution of
the Securities being registered, other than underwriting compensation, are as
follows:
Securities and Exchange Commission registration fee.................$ 147,500
Legal fees and expenses............................................. 150,000
Accounting fees and expenses........................................ 75,000
Rating agency fees.................................................. 125,000
Trustee fees and expenses........................................... 7,500
Printing, engraving and postage expenses............................ 30,000
Miscellaneous expenses.............................................. 30,000
----------
Total $ 565,000
==========
Item 15. Indemnification of Directors and Officers.
The VSCA permits, and the Company's Articles require, indemnification
of the Company's directors and officers in a variety of circumstances, which may
include liabilities under the Securities Act. Under sections 13.1-697 and
13.1-702 of the VSCA, a Virginia corporation generally is authorized to
indemnify its directors and officers in civil or criminal actions if they acted
in good faith and, in the case of criminal actions, had no reasonable cause to
believe that the conduct was unlawful. The Company's Articles require
indemnification of directors and officers with respect to any liability,
expenses and other amounts incurred by them by reason of having been a director
or officer, except in the case of willful misconduct or a knowing violation of
criminal law. The Company's Articles provide that, to the full extent that the
VSCA permits elimination of the liability of directors or officers, no director
or officer of the Company shall be liable to the Company or its shareholders for
any monetary damages.
Item 16. Exhibits
1 --Form of Underwriting Agreement*
4.1 --Form of Senior Indenture, dated as of __________ __, 199_,
between the Company and The Bank of New York, as Trustee
4.2 --Form of Subordinated Indenture, dated as of __________ __, 199_,
between the Company and The Bank of New York, as Trustee
4.3 --Form of Deposit Agreement**
4.4 --Form of Deposit Receipt**
4.5 --Form of Warrant Agreement**
4.6 --Form of Warrant Certificate**
5 --Opinion of Hunton & Williams*
12 --Statement re Computation of Ratios*
23.1 --Consent of Ernst & Young LLP *
23.2 --Consent of KPMG Peat Marwick LLP*
23.3 --Consent of KPMG Peat Marwick LLP
23.4 --Consent of Arthur Andersen LLP
23.5 --Consent of Hunton & Williams (included in Exhibit 5)*
24 --Powers of Attorney of Directors and Officers of the Company
(included on signature pages)*
25.1 --Statement of Eligibility on Form T-1 of The Bank of New York, as the
Senior Trustee, under the Trust Indenture Act of 1939
25.2 --Statement of Eligibility on Form T-1 of The Bank of New York, as
the Subordinated Trustee, under the Trust Indenture Act of 1939
- ----------------
* Previously filed.
** To be filed by a post-effective amendment or by a Current Report on Form
8-K pursuant to the Securities Exchange Act of 1934, as appropriate.
<PAGE>
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information
set forth in the registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided,however, that the undertakings set forth in subparagraphs (i)
and (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 with or furnished to the Commission by the
Registrant pursuant to Sections 13 or 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(4) For purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(5) 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 provisions
described under Item 15 above, or otherwise, the registrant has
been advised that in the opinion of the 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.
(6) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A
and contained in the form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
of 1933 shall be deemed to be part of this registration statement
as of the time it was declared effective.
<PAGE>
(7) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains
a form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(8) To file an application for the purpose of determining the
eligibility of a trustee to act under subsection (a) of Section
310 of the Trust Indenture Act of 1939 in accordance with the rules
and regulations prescribed by the Commission under Section 305(b)(2)
of the Trust Indenture Act of 1939.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this
Pre-effective Amendment No. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the County of Henrico,
Commonwealth of Virginia, on October 20, 1998.
RICHFOOD HOLDINGS, INC.
(Registrant)
By: /s/ John E. Stokely
------------------------
John E. Stokely
Chairman, President and Chief
Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Pre-effective Amendment No. 1 to the Registration Statement has been signed by
the following persons in the capacities indicated on October 20, 1998.
Signature Title
--------- -----
By /s/ John E. Stokely Chairman of the Board, President
------------------------------- and Chief Executive Officer
John E. Stokely (principal executive officer)
By ------------------------------- Director
Donald D. Bennett
By /s/ Roger L. Gregory* Director
-------------------------------
Roger L. Gregory
By /s/ Grace E. Harris* Director
-------------------------------
Grace E. Harris
By /s/ John C. Jamison* Director
-------------------------------
John C. Jamison
By /s/ G. Gilmer Minor, III* Director
-------------------------------
G. Gilmer Minor, III
By /s/ Claude B. Owen, Jr.* Director
-------------------------------
Claude B. Owen, Jr.
<PAGE>
By /s/ Albert F. Sloan* Director
-------------------------------
Albert F. Sloan
By /s/ George H. Thomazin* Director
-------------------------------
George H. Thomazin
By /s/ James E. Ukrop* Director
-------------------------------
James E. Ukrop
By /s/ Edward Villanueva* Director
-------------------------------
Edward Villaneuva
By /s/ John C. Belknap Executive Vice President and
------------------------------- Chief Financial Officer
John C. Belknap (principal financial officer)
By /s/ David W. Hoover Vice President-Finance
------------------------------- (principal accounting officer)
David W. Hoover
*By /s/ Scott M.J. Anderegg
----------------------------------
Scott M.J. Anderegg
Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
Exhibit
Number Exhibit
- ------- -------
1 --Form of Underwriting Agreement*
4.1 --Form of Senior Indenture, dated as of __________ __, 199_,
between the Company and The Bank of New York, as Trustee
4.2 --Form of Subordinated Indenture, dated as of __________ __,
199_, between the Company and The Bank of New York, as Trustee
4.3 --Form of Deposit Agreement**
4.4 --Form of Deposit Receipt**
4.5 --Form of Warrant Agreement**
4.6 --Form of Warrant Certificate**
5 --Opinion of Hunton & Williams*
12 --Statement re Computation of Ratios*
23.1 --Consent of Ernst & Young LLP *
23.2 --Consent of KPMG Peat Marwick LLP*
23.3 --Consent of KPMG Peat Marwick LLP
23.4 --Consent of Arthur Andersen LLP
23.5 --Consent of Hunton & Williams (included in Exhibit 5)*
24 --Powers of Attorney of Directors and Officers of the Company
(included on signature pages)*
25.1 --Statement of Eligibility on Form T-1 of The Bank of New York, as the
Senior Trustee, under the Trust Indenture Act of 1939
25.2 --Statement of Eligibility on Form T-1 of The Bank of New
York, as the Subordinated Trustee, under the Trust
Indenture Act of 1939
- ----------------
* Previously filed.
** To be filed by a post effective amendment or by a Current Report on Form 8-K
pursuant to the Securities Exchange Act of 1934, as appropriate.
EXHIBIT 4.1
RICHFOOD HOLDINGS, INC.
AND
THE BANK OF NEW YORK, Trustee
Indenture
Dated as of ___________________ __, 199_
<PAGE>
Reconciliation and Tie Between
the Trust Indenture Act of 1939
and Indenture,
Dated as of _____________________ __, 199_*
Trust Indenture
Act Section Indenture Section
- ---------------- -----------------
Section 310(a)(1) ............................................... 609
(a)(2) .................................................... 609
(a)(3) ......................................... Not Applicable
(a)(4) ......................................... Not Applicable
(a)(5) ............................................... 608, 610
(b) .................................................. 608, 610
(c) ............................................ Not Applicable
Section 311(a) .................................................. 613
(b) ....................................................... 613
Section 312(a) .......................................... 701, 702(a)
(b) .................................................... 702(b)
(c) ....................................................... 703
Section 313(a) .................................................. 703
(b) ....................................................... 703
(c) ....................................................... 703
(d) ....................................................... 703
Section 314(a) .............................................704, 1005
(b) ............................................ Not Applicable
(c)(1) .................................................... 102
(c)(2) .................................................... 102
(c)(3) ......................................... Not Applicable
(d) ............................................ Not Applicable
(e) ....................................................... 102
(f) ............................................ Not Applicable
Section 315(a) .................................................. 601
(b) ....................................................... 602
(c) ....................................................... 601
(d) ....................................................... 601
(e) ....................................................... 514
Section 316(a) .................................................. 101
(a)(1)(A) ................................................. 512
(a)(1)(B) ................................................. 513
(a)(2) ......................................... Not Applicable
(b) ....................................................... 508
Section 317(a)(1) ............................................... 503
(a)(2) .................................................... 504
(b) ...................................................... 1003
Section 318(a) .................................................. 107
(c) ....................................................... 107
- ---------------------
* This table shall not, for any purpose, be deemed to be a part of the
Indenture.
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions1
Section 102. Compliance Certificates and Opinions ................ 8
Section 103. Form of Documents Delivered to Trustee .............. 9
Section 104. Acts of Holders; Record Dates ....................... 10
Section 105. Notices, Etc., to Trustee and Company ............... 11
Section 106. Notice to Holders; Waiver ........................... 12
Section 107. Conflict with Trust Indenture Act ................... 12
Section 108. Effect of Headings and Table of Contents ............ 12
Section 109. Successors and Assigns .............................. 12
Section 110. Separability Clause ................................. 12
Section 111. Benefits of Indenture ............................... 13
Section 112. Governing Law ....................................... 13
Section 113. Legal Holidays ...................................... 13
ARTICLE TWO
SECURITY FORMS
Section 201. Forms of Securities ................................. 13
Section 202. Form of Trustee's Certificate of Authentication ..... 14
Section 203. Securities in Global Form ........................... 14
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series ................ 14
Section 302. Denominations ....................................... 16
Section 303. Execution, Authentication, Delivery and Dating ...... 16
Section 304. Temporary Securities ................................ 18
Section 305. Registration, Registration of Transfer and Exchange
and Book-Entry Securities ....................... 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 ............................. 24
Section 311. CUSIP Numbers ....................................... 24
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture ............. 24
Section 402. Application of Trust Money .......................... 25
<PAGE>
ARTICLE FIVE
REMEDIES
Section 501. Events of Default ....................................26
Section 502. Acceleration of Maturity; Rescission and Annulment .. 28
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee ..........................................29
Section 504. Trustee May File Proofs of Claim .....................30
Section 505. Trustee May Enforce Claims Without Possession of
Securities ..........................................31
Section 506. Application of Money Collected .......................31
Section 507. Limitation on Suits ..................................31
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest ................................32
Section 509. Restoration of Rights and Remedies ...................32
Section 510. Rights and Remedies Cumulative .......................33
Section 511. Delay or Omission Not Waiver .........................33
Section 512. Control by Holders ...................................33
Section 513. Waiver of Past Defaults ..............................34
Section 514. Undertaking for Costs ................................34
Section 515. Waiver of Stay or Extension Laws .....................35
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities ..................35
Section 602. Notice of Defaults ...................................36
Section 603. Certain Rights of Trustee ............................36
Section 604. Not Responsible for Recitals or
Issuance of Securities .............................38
Section 605. May Hold Securities ..................................38
Section 606. Money Held in Trust ..................................38
Section 607. Compensation and Reimbursement .......................38
Section 608. Disqualification; Conflicting Interests ..............39
Section 609. Corporate Trustee Required; Eligibility ..............39
Section 610. Resignation and Removal; Appointment of Successor ....40
Section 611. Acceptance of Appointment by Successor ...............41
Section 612. Merger, Conversion, Consolidation or Succession
to Business ......................................42
Section 613. Preferential Collection of Claims Against Company ....43
Section 614. Appointment of Authenticating Agent ..................43
<PAGE>
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and
Addresses of Holders .............................45
Section 702. Preservation of Information; Communications
to Holders .......................................45
Section 703. Reports by Trustee ...................................45
Section 704. Reports by Company ...................................46
Section 705. Holders' Meetings ....................................46
ARTICLE EIGHT
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on
Certain Terms ....................................48
Section 802. Successor Substituted ................................49
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders ...50
Section 902. Supplemental Indentures With Consent of Holders ......51
Section 903. Execution of Supplemental Indentures .................52
Section 904. Effect of Supplemental Indentures ....................53
Section 905. Conformity with Trust Indenture Act ..................53
Section 906. Reference in Securities to Supplemental Indentures ...53
Section 907. Notice of Supplemental Indenture 5153
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest ...........53
Section 1002. Maintenance of Office or Agency ......................54
Section 1003. Money for Securities Payments to Be Held in Trust ....54
Section 1004. Corporate Existence ..................................55
Section 1005. Statement by Officers as to Default ..................55
Section 1006. Maintenance of Properties ............................56
Section 1007. Payment of Taxes and Other Claims ....................56
Section 1008. Restrictions on Secured Debt and on Debt of
Restricted Subsidiaries .............................56
Section 1009. Restrictions on Sales and Leasebacks .................58
Section 1010. Waiver of Certain Covenants ..........................59
Section 1011. Calculation of Original Issue Discount ...............60
<PAGE>
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article .............................60
Section 1102. Election to Redeem; Notice to Trustee ................60
Section 1103. Selection by Trustee of Securities to Be Redeemed ....60
Section 1104. Notice of Redemption .................................61
Section 1105. Deposit of Redemption Price ..........................61
Section 1106. Securities Payable on Redemption Date ................62
Section 1107. Securities Redeemed in Part ..........................62
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article .............................62
Section 1202. Satisfaction of Sinking Fund Payments
with Securities ..................................63
Section 1203. Redemption of Securities for Sinking Fund ............63
ARTICLE THIRTEEN
REPAYMENT OF SECURITIES
AT OPTION OF HOLDERS
Section 1301. Applicability of Article .............................63
Section 1302. Notice of Repayment Date .............................63
Section 1303. Deposit of Repayment Price ...........................64
Section 1304. Securities Payable on Repayment Date .................64
Section 1305. Securities Repaid in Part ............................65
ARTICLE FOURTEEN
CONVERSION OF SECURITIES
Section 1401. General ..............................................65
Section 1402. Right to Convert .....................................65
Section 1403. Manner of Exercise of Conversion Privilege; Delivery
of Common Stock; No Adjustment for
Interest or Dividends .............................66
Section 1404. Cash Payments in Lieu of Fractional Shares ...........67
Section 1405. Conversion Price Adjustments; Effect of
Reclassification, Mergers,
Consolidations and Sales of Assets ................67
Section 1406. Taxes on Shares Issued ...............................71
Section 1407. Shares to be Fully Paid; Compliance with
Governmental Requirements; Listing
of Common Stock ..................................71
Section 1408. Responsibility of Trustee ............................72
Section 1409. Covenant to Reserve Shares ...........................72
Section 1410. Other Conversions ....................................72
<PAGE>
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1501. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance ...............72
Section 1502. Defeasance and Discharge .............................73
Section 1503. Covenant Defeasance ..................................73
Section 1504. Conditions to Defeasance or Covenant Defeasance ......74
Section 1505. Deposited Money and Qualified Obligations to be Held
in Trust; Other Miscellaneous Provisions ........76
Section 1506. Reinstatement ........................................76
ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS,
SHAREHOLDERS, OFFICERS AND DIRECTORS
Section 1601. Immunity of Incorporators, Shareholders,
Officers and Directors ...........................77
<PAGE>
INDENTURE, dated as of__________ __, 199_, between RICHFOOD HOLDINGS,
INC., a corporation duly organized and existing under the laws of the
Commonwealth of Virginia (herein called the "Company"), having its principal
office at 4860 Cox Road, Glen Allen, Virginia 23060, and THE BANK OF NEW YORK, a
banking corporation duly organized and existing under the laws of the State of
New York, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
unsubordinated debentures, notes or other evidences of indebtedness (herein
called the "Securities"), to be issued in one or more series as in this
Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
<PAGE>
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable, at any date as of which the amount thereof is to
be determined, the total net amount of rent required to be paid by such Person
under such lease during the remaining term thereof (excluding any subsequent
renewal or other extension options held by the lessee), discounted from the
respective due dates thereof to such date at the rate of 10% per annum
compounded annually. The net amount of rent required to be paid under any such
lease for any such period shall be the amount of the rent payable by the lessee
with respect to such period, after excluding amounts required to be paid on
account of maintenance and repairs, insurance, taxes, assessments, water rates
and similar charges and contingent rents (such as those based on sales). In the
case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of such penalty, but no
rent shall be considered as required to be paid under such lease subsequent to
the first date upon which it may be so terminated.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Authorized Newspaper" means a newspaper of general circulation in the
relevant area, printed in the English language and customarily published on each
Business Day therein.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board or any director or directors and/or
officer or officers of the Company to whom that board or committee shall have
duly delegated its authority.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
<PAGE>
"Capital Stock", as applied to the stock of any corporation, means the
capital stock of every class whether now or hereafter authorized, regardless of
whether such capital stock shall be limited to a fixed sum or percentage with
respect to the rights of the holders thereof to participate in dividends and in
the distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of such corporation.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Stock" means any Capital Stock of any class of the Company which
has no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding up of the
Company and which is not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its President or any Vice President, and by its Chief
Financial Officer, Controller, Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities, and (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the most recent balance sheet of the Company
and its consolidated Subsidiaries and computed in accordance with generally
accepted accounting principles.
"Conversion Price" means, with respect to any series of Securities which
are convertible into Common Stock, the price per share of Common Stock at which
the Securities of such series are so convertible as set forth in the Board
Resolution with respect to such series (or in any supplemental indenture entered
into pursuant to Section 901(9) with respect to such series), as the same may be
adjusted from time to time in accordance with Section 1405 (or such supplemental
indenture pursuant to Section 1401).
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of execution of this Indenture is located at 101
Barclay Street, Floor 21 West, New York, New York 10286, Attention: Corporate
Trust Trustee Administration.
<PAGE>
"corporation" includes corporations, associations, companies and business
trusts.
"Debt" means (without duplication), with respect to any Person, (i) every
obligation of such Person for money borrowed, (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
every reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such Person
and (iv) every obligation of the type referred to in clauses (i) through (iii)
of another Person, the payment of which such Person has guaranteed or is
responsible or liable for, directly or indirectly, as obligor, guarantor or
otherwise (but only, in the case of this clause (iv), to the extent such Person
has guaranteed or is responsible or liable for such obligations).
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of a Global Security, a clearing agency registered under
the Securities Exchange Act of 1934, as amended, or any successor thereto, which
shall in either case be designated by the Company pursuant to Section 301 or 305
until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Securities of that
series.
"Event of Default" has the meaning specified in Section 501.
"Funded Debt" means (a) all Debt of the Company and each Subsidiary of the
Company maturing on, or renewable or extendible at the option of the obligor to,
a date more than one year from the date of the determination thereof, (b)
capital lease obligations payable on a date more than one year from the date of
the determination thereof, (c) guarantees, direct or indirect, and other
contingent obligations of the Company and each Subsidiary of the Company in
respect of, or to purchase or otherwise acquire or be responsible or liable for
(through the investment of funds or otherwise), any obligations of the type
described in the foregoing clauses (a) and (b) of others (but not including
contingent liabilities on customer receivables sold with recourse), and (d)
amendments, renewals, extensions and refundings of any obligations of the type
described in the foregoing clauses (a), (b) and (c).
"Global Security or Securities" means one or more fully registered
Securities in global form evidencing all or a part of a series of Securities
issued to the Depositary for such series or its nominee or registered in the
name of the Depositary or its nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
<PAGE>
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established as contemplated
by Section 301.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or by repayment or otherwise.
"Mortgage" means and includes any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance.
"Officers' Certificate" means a certificate signed by at least two
officers of the Company, one signature being that of the Chairman of the Board,
the Chief Executive Officer, the President or any Vice President, and the
other signature being that of the Chief Financial Officer, Controller,
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made;
<PAGE>
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company; and
(iv) Securities with respect to which the Company has effected
defeasance as provided in Article Fifteen;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502, and (b) Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" means any Capital Stock of any class of the Company
which has a preference over Common Stock in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which is not mandatorily redeemable or repayable,
or redeemable or repayable at the option of the Holder, otherwise than in shares
of Common Stock or Preferred Stock of another class or series or with the
proceeds of the sale of Common Stock or Preferred Stock.
<PAGE>
"Principal Property" means any manufacturing or processing plant, office
facility, retail store, warehouse or distribution center, including, in each
case, the fixtures appurtenant thereto, located within the continental United
States and owned and operated now or hereafter by the Company or any Restricted
Subsidiary and having a book value on the date as of which the determination is
being made of more than 3% of Consolidated Net Tangible Assets.
"Qualified Obligations" has the meaning specified in Section 1504.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee customarily performing corporate trust functions.
<PAGE>
"Restricted Subsidiary" means a Subsidiary of the Company, substantially
all the property of which is located, or substantially all the business of which
is carried on, within the present 50 States of the United States and which (i)
owns a Principal Property as of the date hereof, or (ii) acquires a Principal
Property after the date hereof from the Company or a Restricted Subsidiary other
than for cash equal to such property's fair market value as determined by the
Board of Directors, or (iii) acquires a Principal Property after the date hereof
by purchase with funds substantially all of which are provided by the Company or
a Restricted Subsidiary or with the proceeds of indebtedness for money borrowed,
which indebtedness is guaranteed in whole or in part by the Company or a
Restricted Subsidiary; provided, however, that "Restricted Subsidiary" shall not
include any Equity Store or Person participating in the Business Development
Program. For purposes of this definition, (a) "Equity Store" means a Person in
which the Company or any of its Subsidiaries has invested capital or to which it
has made loans in accordance with the business practice of the Company and its
Subsidiaries of making equity investments in Persons, and making or guaranteeing
loans to such Persons, for the purpose of assisting such Persons in acquiring,
remodeling, refurbishing, expanding or operating one or more retail grocery
stores and pursuant to which such Persons are permitted or required to reduce
the Company's or the Subsidiary's equity interest to a minority position over
time, and (b) "Business Development Program" means the business practice of the
Company and its Subsidiaries of making or guaranteeing loans to, or making
equity investments in, third parties engaged in the retail grocery business in
exchange for long-term supply agreements with the Company or any Subsidiary.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal or such installment of
principal, premium, if any, or interest on such Security is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of Capital 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.
<PAGE>
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"United States" means the United States of America.
"Vice President", when used with respect to the Company, means any vice
president, whether or not designated by a number or a word or words added before
or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than the certificate provided
for in Section 1005) shall include:
(1) A statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
<PAGE>
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion are based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
<PAGE>
(e) The Company may, in the circumstances permitted by the Trust Indenture
Act, fix any day as the record date for the purpose of determining the Holders
of Outstanding Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series made by any Person in
respect of any such action, or in the case of any such vote, prior to such vote,
the record date for any such action or vote shall be the 30th day (or, if later,
the date of the most recent list of Holders required to be provided pursuant to
Section 701) prior to such first solicitation or vote, as the case may be. With
regard to any record date for action to be taken by the Holders of one or more
series of Securities, only the Holders of Outstanding Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action.
(f) Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount. Any notice given or
action taken by a Holder or its agents with regard to different parts of such
principal amount pursuant to this paragraph shall have the same effect as if
given or taken by separate Holders of each such different part.
(g) Without limiting the generality of the foregoing, unless otherwise
specified pursuant to Section 301 or pursuant to one or more indentures
supplemental hereto, a Holder, including a Depositary that is the Holder of a
Global Security, may make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken by
Holders, and a Depositary that is the Holder of a Global Security may provide
its proxy or proxies to the beneficial owners of interests in any such Global
Security through such Depositary's standing instructions and customary
practices.
(h) The Trustee shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interests in any Global Security held by a
Depositary entitled under the procedures of such Depositary to make, give or
take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
<PAGE>
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument, Attention: President, or at any other
address previously furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture or any Security provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice to a Holder
which is mailed in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not such Holder receives such notice. Where
this Indenture or any Security provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause, it shall be impracticable to give
notice of any event to Holders by mail when such notice is required to be given
pursuant to any provision of this Indenture or any Security, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder and thereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture
Act through the operation of Section 318(c) thereof, such imposed duties shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or shall be
deemed to be so excluded, as the case may be.
<PAGE>
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture; provided that this
Section 111 shall not limit the rights of any Holder of a Global Security to
give any notice or take any action, or appoint any agents, with regard to any
part or different parts of the principal amount of such Global Security pursuant
to Section 104.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York and for all purposes shall be
governed by and construed in accordance with the laws of said State without
regard to the conflicts of laws and rules of said State.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date or Stated Maturity of any Security shall not be
a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of interest or
principal (and premium, if any) need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made on
the Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment
date or at the Stated Maturity, provided that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date or Stated Maturity, as the case may be.
<PAGE>
ARTICLE TWO SECURITY FORMS
Section 201. Forms of Securities.
The Securities of each series shall be in such form or forms (including
global form) as shall be established by or pursuant to a Board Resolution or in
one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with any law or with any rules made pursuant thereto or the
rules of any securities exchange or as may, consistently herewith, be determined
by the officers executing such Securities, as evidenced by their execution of
such Securities. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The Trustee's certificates of authentication shall be in substantially the
form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved or
may be produced in any other manner permitted by the rules of any securities
exchange upon which the Securities may be listed and (with respect to Global
Securities of any Series) the rules of the Depositary, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
Section 202. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By_______________________________
Authorized Signatory
Section 203. Securities in Global Form.
If any Security of a series is issuable in global form, such Security may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and also may provide that the aggregate
amount of Outstanding Securities represented thereby may from time to time be
reduced to reflect exchanges. Any endorsement of a Security in global form to
reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee and in such manner
as shall be specified in such Security. Any instructions by the Company with
respect to a Security in global form, after its initial issuance, shall be in
writing but need not comply with Section 102.
<PAGE>
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. All Securities of each
series issued under this Indenture shall in all respects be equally and ratably
entitled to the benefits hereof with respect to such series without preference,
priority or distinction on account of the actual time of the authentication and
delivery or Maturity of the Securities of such series. There shall be
established in or pursuant to a Board Resolution, and, to the extent not set
forth therein, set forth in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of Securities of any
series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of that series pursuant to Section 304, 305, 306, 906, 1107,
1305 or 1403);
(3) the date or dates, or the method by which such date or dates
will be determined or extended, on which the principal and premium, if
any, of the Securities of the series is payable;
(4) the rate or rates (which may be fixed or floating) , or the
method of determination thereof, at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall be
payable and the Regular Record Date, if any, for the interest payable on
any Interest Payment Date;
(5) if other than the Corporate Trust Office, the place or places
where the principal of (and premium, if any) and interest on Securities of
the series shall be payable;
(6) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
<PAGE>
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502;
(10) if the Securities of the series shall be issued in whole or in
part in the form of a Global Security or Securities, the Depositary for
such Global Security or Securities;
(11) any addition to or change in the Events of Default which
applies to any Securities of the series;
(12) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series;
(13) if the Securities of the series are convertible into Common
Stock, the Conversion Price therefor, the period during which such
Securities are convertible and any terms and conditions for the conversion
of such Securities which differ from Article Fourteen;
(14) the application, if any, of Section 1502 or 1503 to the
Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fifteen; and
(15) any other terms, conditions and provisions of the series (which
terms, conditions and provisions shall not be inconsistent with the
provisions of this Indenture).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to
such Board Resolution and set forth in such Officers' Certificate, to the extent
applicable, or in any such indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuance of
additional Securities of such series.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Board Resolution or
the Officers' Certificate setting forth the terms of the series.
<PAGE>
Section 302. Denominations.
The Securities of each series shall be issuable in registered form without
coupons in such denominations as shall be specified as contemplated by Section
301. In the absence of any such provisions with respect to the Securities of any
series, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Chief Executive Officer, its President or any one of its Vice
Presidents, under its corporate seal which may be in facsimile form and may be
imprinted or otherwise reproduced thereon, and attested by its Secretary or one
of its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, and the Trustee shall authenticate
and deliver such Securities upon Company Order. If all the Securities of any one
series are not to be originally issued at one time and if a Board Resolution
relating to such Securities or supplemental indenture shall so permit, such
Company Order may set forth procedures (acceptable to the Trustee) for the
issuance and authentication of such Securities.
If the form or terms of the Securities of the series have been established
in or pursuant to one or more Board Resolutions as permitted by Sections 201 and
301, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such form
has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, to general equity principles
and to such other exceptions as are then customary in accordance with
market practice.
<PAGE>
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Board Resolution or Officers'
Certificate otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to this Section 303 at or prior
to the time of authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued and such documents reasonably
contemplate the issuance of all Securities of such series.
Unless otherwise provided in the form of Security for any series, each
Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
If the Company shall establish pursuant to Section 301 that the Securities
of a series are to be issued in the form of one or more Global Securities, then
the Company shall execute and the Trustee shall, in accordance with this Section
and the Company Order with respect to such series, authenticate and deliver one
or more Global Securities that (i) shall represent and shall be denominated in
an amount equal to the aggregate principal amount of all of the Securities of
such series having the same terms issued and not yet cancelled, (ii) shall be
registered in the name of the Depositary for such Global Security or Securities
or the nominee of such Depositary, (iii) shall be delivered by the Trustee to
such Depositary or pursuant to such Depositary's instructions and (iv) shall
bear a legend substantially to the following effect: "Unless and until it is
exchanged in whole or in part for Securities in definitive registered form, this
Security may not be transferred except as a whole by the Depositary to the
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
<PAGE>
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities. Every such temporary Security
shall be executed by the Company and shall be authenticated and delivered by the
Trustee upon the same conditions and in substantially the same manner, and with
the same effect, as the definitive Security in lieu of which it is issued.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
Section 305. Registration, Registration of Transfer and Exchange and
Book-Entry Securities.
The Company shall cause to be kept at one of its offices or agencies
maintained pursuant to Section 1002 a register (the register maintained in such
office being herein sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities. The
Person responsible for the maintenance of the Security Register is referred to
herein as the "Security Registrar." The Trustee is hereby initially appointed
Security Registrar for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series
at the office or agency in a Place of Payment for that series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Securities of any series (except Global
Securities) may be exchanged for other Securities of the same series (except
Global Securities) of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
<PAGE>
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Security Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107, 1305 or 1403 not involving any
transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding any other provision of this Section 305, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Global Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
a series shall no longer be registered or in good standing under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, the Company shall execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, shall authenticate and deliver Securities
of such series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such event
the Company shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, shall
authenticate and deliver, Securities of such series in definitive registered
form without coupons, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such series, in exchange for such Global Security or Securities.
<PAGE>
If specified by the Company pursuant to Section 301 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series in definitive registered form on such terms as are
acceptable to the Company and such Depositary. Thereupon, the Company shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new Security or
Securities of the same series, of any authorized denomination as requested
by such Person, in an aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities authenticated and delivered pursuant to Clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form, in authorized denominations, such Global Security shall be
cancelled by the Trustee. Securities in definitive registered form issued in
exchange for a Global Security pursuant to this Section 305 shall be registered
in such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall not be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions. The Trustee shall,
at Company expense, deliver such Securities to or as directed by the Persons in
whose names such Securities are so registered.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities .
If any mutilated Security is surrendered to the Trustee, together with
such security or indemnity as may be reasonably required by the Trustee to
save it harmless, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be reasonably 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.
<PAGE>
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security, subject to satisfaction of
the foregoing conditions.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. The Company and the Trustee understand that interest on any
Global Security will be disbursed or credited by the Depositary to the Persons
having ownership thereof pursuant to a book entry or other system maintained by
the Depositary.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or Clause (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities of such series (or their
respective 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).
<PAGE>
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
<PAGE>
Section 309. Cancellation.
Unless otherwise specified pursuant to Section 301(7) for Securities of
any series, all Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee, except that if a Global Security is so surrendered, the Company shall
execute and the Trustee shall authenticate and deliver to the Depositary for
such Global Security, without service charge, a new Global Security or
Securities in a denomination equal to and in exchange for the portion of the
Global Security so surrendered not to be paid, redeemed, repaid or registered
for transfer or exchange or for credit. No Securities shall be authenticated in
lieu of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of in accordance with its customary procedures
and a certificate of disposition shall be delivered to the Company upon Company
Request.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
The Company in issuing Securities of any series may use a "CUSIP" number
(if then generally in use) with respect to Securities of such series, and, if
so, the Trustee shall use such "CUSIP" number in notices of redemption as a
convenience to Holders of Securities of such series; provided that any such
notice may state that no representation is made as to the correctness of such
number 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 identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such number. The Company will promptly notify
the Trustee of any change in "CUSIP" numbers associated with Securities of any
series.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
Upon Company Request, this Indenture shall cease to be of further effect
with respect to the Securities of a particular series (except as to any
surviving rights to convert Securities into Common Stock, or rights of
registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such Securities, when:
<PAGE>
(1) either:
(A) all Securities of such series theretofore authenticated
and delivered (other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 306 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust
by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all Securities of such series not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year,
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee as trust funds in trust for the purpose sums sufficient to
pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest to the date of such deposit (in
the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be; and
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to such Securities; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture with respect to the Securities of such series have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to
the Securities of a particular series, the obligations of the Company to the
Trustee under Section 607, the obligations, if any, of the Company to any
Authenticating Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003, in each case with respect to such Securities, shall survive.
<PAGE>
Notwithstanding the cessation, termination and discharge of all obligations,
covenants and agreements of the Company under this Indenture with respect to any
series of Securities, the obligations of the Company to the Trustee under
Section 607, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive with respect to such series of
Securities.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee. All money deposited with the Trustee pursuant to Section 401 (and held
by it or any Paying Agent) for the payment of Securities subsequently converted
into Common Stock shall be returned to the Company upon Company Request.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of series of Securities other
than that series), and continuance of such default or breach for a period
of 60 days after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities
of that series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
<PAGE>
(5) the happening of an event of default as defined in any mortgage,
indenture or instrument under which there may be issued or by which there
may be secured or evidenced any Debt of the Company or any Restricted
Subsidiary (including an Event of Default under this Indenture with
respect to Securities of any series other than that series), whether now
existing or hereafter created, which event of default shall have resulted
in Debt of the Company or any Restricted Subsidiary becoming or being
declared due and payable prior to the date on which it would otherwise
have become due and payable, if the aggregate principal amount (or, if
applicable, with an issue price plus accrued original issue discount) of
such Debt is in excess of five percent (5%) of the aggregate principal
amount of the Company's Funded Debt then outstanding, unless, within 30
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Securities of that
series a written notice specifying such acceleration and requiring it to
be remedied and stating that such notice is a "Notice of Default," such
acceleration has been rescinded or annulled, such Debt has been paid, or
the Company or such Restricted Subsidiary shall have contested such
acceleration in good faith and by appropriate proceedings and have
obtained and thereafter maintained a stay of all consequences thereof that
would have a material adverse effect on the Company; provided, however,
that if, after the expiration of such period, such event of default shall
be remedied or cured by the Company or such Restricted Subsidiary or be
waived by the holders of such Debt in any manner authorized by such
mortgage, indenture or instrument or shall otherwise cease to exist, then
the Event of Default hereunder by reason thereof shall, without further
action by the Company, the Trustee or any Holder, be deemed cured and not
continuing; or
(6) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company or any Restricted
Subsidiary in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law or (B) a decree or order adjudging the Company or any Restricted
Subsidiary a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company or any Restricted Subsidiary under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
the Company or any Restricted Subsidiary or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
<PAGE>
(7) the commencement by the Company or any Restricted Subsidiary of
a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect of
the Company or any Restricted Subsidiary in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by
it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any Restricted Subsidiary or of any
substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of
corporate action by the Company or any Restricted Subsidiary in
furtherance of any such action; or
(8) any other Event of Default provided with respect to Securities
of that series.
Upon receipt by the Trustee of any proposed Notice of Default from any
Holder with respect to Securities of a series all or part of which is
represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join in
such proposed Notice of Default, which record date shall be at the close of
business on the day the Trustee receives such proposed Notice of Default. The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such proposed Notice of Default, whether
or not such Holders remain Holders after such record date; provided, that unless
Holders of at least 25% in principal amount of the Outstanding Securities of
such series, or their proxies, shall have joined in such proposed Notice of
Default prior to the day which is 90 days after such record date, such proposed
Notice of Default shall automatically and without further action by any Holder
be cancelled and of no further effect. Nothing in this paragraph shall prevent a
Holder, or a proxy of a Holder, from giving (i) after expiration of such 90-day
period, a new proposed Notice of Default identical to a proposed Notice of
Default which has been cancelled pursuant to the proviso to the preceding
sentence, or (ii) during any such 90-day period, an additional proposed Notice
of Default with respect to any new or different fact or circumstance permitting
the giving of a proposed Notice of Default with respect to Securities of such
series, in either of which events a new record date shall be established
pursuant to the provisions of this Section 501. Any such proposed Notice of
Default shall be considered a Notice of Default hereunder at such time, if any,
that Holders of at least 25% in principal amount of the Outstanding Securities
shall have joined in such proposed Notice of Default by giving timely notice to
the Trustee hereunder.
<PAGE>
Section 502. Acceleration of Maturity; Rescission and Annulment
.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case, the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. Upon payment of said amounts,
all obligations of the Company in respect of payment of principal of the
Securities of such series shall terminate.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee
a sum sufficient to pay
(A) all overdue interest on all Securities of
that series,
(B) the principal of (and premium, if any, on) any Securities
of that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or
rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
<PAGE>
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, with respect to Securities of
a series all or part of which is represented by a Global Security, a record date
shall be established for determining Holders of Outstanding Securities of such
series entitled to join in such notice, which record date shall be at the close
of business on the day the Trustee receives such notice. The Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such notice, whether or not such Holders remain Holders
after such record date; provided, that unless such declaration of acceleration,
or rescission and annulment, as the case may be, shall have become effective by
virtue of the requisite percentage having joined in such notice prior to the day
which is 90 days after such record date, such notice of declaration of
acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be cancelled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving, (i) after expiration of such 90-day period, a new written
notice of declaration of acceleration or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been cancelled
pursuant to the proviso to the preceding sentence, or (ii) during any such
90-day period, an additional written notice of declaration of acceleration with
respect to Securities of such series, or an additional written notice of
rescission and annulment of any declaration of acceleration with respect to any
other Event of Default with respect to Securities of such series, in either of
which events a new record date shall be established pursuant to the provisions
of this Section 502.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for
a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
(3) default is made in the making or satisfaction of any sinking
fund payment when it becomes due pursuant to the terms of the Securities
of any series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
or rates prescribed therefor in such Securities and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may, but shall not
be obligated to, institute a judicial proceeding for the collection of the sums
so due and unpaid, may prosecute such proceeding to judgment or final decree,
and may enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities, wherever situated.
<PAGE>
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to file and prove a claim for the
whole amount of principal, premium (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 claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements, and advances of
the Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
<PAGE>
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article with respect
to one or more series of Securities shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities of any such series and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal (and
premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Company or to
whomsoever may be lawfully entitled to receive the same as a
court of competent jurisdiction may direct.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to a Responsible
Officer of the Trustee of a continuing Event of Default with respect to
the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
against the costs, expenses and liabilities to be incurred in compliance
with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or of the Holders of Outstanding Securities of any other series,
or to obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such Holders.
<PAGE>
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption or repayment at the option of the
Holder, on the Redemption Date or the Repayment Date, as the case may be) and
(if the terms of such Security so provide) to have such Security converted into
Common Stock pursuant to Article Fourteen and to institute suit for the
enforcement of any such payment or conversion, and such rights shall not be
impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right 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.
<PAGE>
Section 512. Control by Holders.
The Holders of at least a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, expose the Trustee to personal liability or be unduly
prejudicial to Holders not joining therein, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Upon receipt by the Trustee of any such direction with respect to
Securities of a series all or part of which is represented by a Global Security,
a record date shall be established for determining Holders of Outstanding
Securities of such series entitled to join in such direction, which record date
shall be determined in accordance with Section 104(e). The Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such direction, whether or not such Holders remain Holders
after such record date; provided, that unless Holders of at least a majority in
principal amount of the outstanding Securities of such series, or their proxies,
shall have been joined in such direction prior to the day which is 90 days after
such record date, such direction shall automatically and without further action
by any Holder be cancelled and of no further effect. Nothing in this paragraph
shall prevent a Holder, or a proxy of a Holder, from giving, (i) after
expiration of such 90-day period, a new direction identical to a direction which
has been cancelled pursuant to the provisions to the preceding sentence or (ii)
during any such 90-day period a new direction contrary to or different from such
direction, in either of which events a new record date shall be established
pursuant to the provisions of this Section 512.
Section 513. Waiver of Past Defaults.
By Act delivered to the Company and the Trustee, the Holders of not less
than a majority in principal amount of the Outstanding Securities of any
affected series may on behalf of the Holders of all the Securities of such
series waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series or in the payment of any sinking
fund installment with respect to the Securities of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
<PAGE>
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to waive any past default hereunder.
If a record date is fixed, the Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to waive any
default hereunder, whether or not such Holders remain Holders after such record
date; provided, that unless such majority in principal amount shall have been
obtained prior to the date which is 90 days after such record date, any such
waiver previously given shall automatically and without further action by any
Holder be cancelled and of no further effect.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs,
including attorneys' fees and expenses, against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided that
neither this Section nor the Trust Indenture Act shall be> deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Trustee, by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or by any Holder for the enforcement of the payment of the principal
of (or premium, if any) or interest on any Security on or after the Stated
Maturity expressed in such Security (or, in the case of redemption or repayment
at the option of the Holder, on or after the Redemption Date or Repayment Date,
as the case may be), and (if the terms of such Security so provide) to have such
Security converted into Common Stock pursuant to Article Fourteen.
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
<PAGE>
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any provision of
this Indenture are specifically required to be furnished to the Trustee,
the Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series, 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; 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.
<PAGE>
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to Securities of any series, the Trustee shall transmit by mail to all Holders
of Securities of such series, as their names and addresses appear in the
Security Register, notice of such default hereunder actually known by a
Responsible Officer of the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal, premium (if any) or interest on any Security of such series or
in the payment of any sinking fund installment with respect to the Securities of
such series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee of the board of
directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interests of the Holders of the
Securities of such series; and provided, further, that in the case of any
default of the character specified in Section 501(4) with respect to the
Securities of such series, no such notice to Holders shall be given until at
least 60 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
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 security or indemnity reasonably
satisfactory to it against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney, at the sole
cost of the Company, and shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation;
<PAGE>
(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;
(h) the Trustee shall not be required to take notice or be deemed to
have notice of any default hereunder (except failure by the Company to pay
principal of, premium (if any) on or interest on any series of Securities
so long as the Trustee is also acting as Paying Agent for such series of
Securities) unless the Trustee shall be specifically notified in writing
of such default by the Company or by the Holders of at least 10% in
aggregate principal amount of all Outstanding Securities of a series, and
all such notices or other instruments required by this Indenture to be
delivered to the Trustee must, in order to be effective, be delivered at
the principal Corporate Trust Office of the Trustee, and in the absence of
such notice the Trustee may conclusively assume there is no default except
as aforesaid;
(i) the Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture; and
(j) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and to each agent, custodian and other
Person employed by the Trustee to act on its behalf 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 or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof. The Trustee shall not be deemed
to have knowledge of the identity of any Restricted Subsidiary unless either (A)
a Responsible Officer of the Trustee shall have actual knowledge thereof or (B)
the Trustee shall have received written notice thereof from the Company or any
Holder.
<PAGE>
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 in writing with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as
shall be agreed to in writing between the Company and the Trustee 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 each of the Trustee and any predecessor Trustee
for, and to hold each of them harmless against, any and all loss,
liability, damage, claims or expense, including taxes (other than taxes
based on the income of the Trustee) 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 (whether asserted by the
Company, any Holder or any other Person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the Holders of particular
Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
<PAGE>
The provisions of this Section shall survive the termination of this
Indenture.
Section 608. Disqualification; Conflicting Interests.
The Trustee for the Securities of any series shall be subject to the
provisions of Section 310(b) of the Trust Indenture Act during the period of
time provided for therein. If the Trustee has or shall acquire a conflicting
interest within the meaning of Section 310 of the Trust Indenture Act, the
Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act
and this Indenture. To the extent permitted by the Trust Indenture Act, the
Trustee shall not be deemed to have a conflicting interest with respect to the
Securities of any series by virtue of being Trustee with respect to the
Securities of any particular series of Securities other than that series.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the expense of the
Company, 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. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of removal, the Trustee being removed may petition, at
the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
<PAGE>
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed 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 an Officers' Certificate may remove
the Trustee with respect to any or all Securities, or (ii) subject to Section
514, any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to
any or all Securities and the appointment of a successor Trustee or Trustees
with respect to such series.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of that or those series shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the successor
Trustee with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
<PAGE>
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each notice
of appointment shall include the name of the successor Trustee with respect to
the Securities of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder, subject nevertheless to its
lien, if any, provided for in Section 607.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
<PAGE>
(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. In case
any Securities shall not have been authenticated by such predecessor Trustee,
any such successor Trustee may authenticate and deliver such Securities, either
in its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of Section 311 of the Trust Indenture Act regarding the collection of
such claims against the Company (or any such other obligor). A Trustee that has
resigned or been removed shall be subject to and comply with said Section 311 to
the extent required thereby.
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities (which may be an Affiliate of the Company)
which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon registration of transfer or partial redemption or
repayment thereof or pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business and in good standing under the
laws of the United States of America, any State or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of no less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
<PAGE>
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 all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may resign at any
time by giving written notice thereof to the Trustee for such series and to the
Company. The Trustee for any series of Securities may at any time terminate the
agency of an Authenticating Agent for such series by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee of such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment thereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
<PAGE>
This is one of the Securities of the series described therein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By ____________________________
As Authenticating Agent
By ____________________________
As Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of
Holders.
With respect to each series of Securities, the Company will furnish or
cause to be furnished to the Trustee for the Securities of such Series
(a) semiannually, not more than 15 days after each Regular Record
Date relating to that series (or, if there is no Regular Record Date
relating to that series, on June 30 and December 31), a list, in such form
as such Trustee may reasonably require, of the names and addresses of the
Holders of that series as of such date,
and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished;
provided, however, that if and so long as the Trustee is Security Registrar with
respect to Securities of a particular series no such list shall be required with
respect to the Securities of such series.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
<PAGE>
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of the
disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the May 15
following the first date on which a Security is authenticated by the Trustee
under this Indenture, the Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act if and to the extent and in the manner
provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when any Securities are listed on any stock
exchange and of any delisting thereof.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit
to Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, shall be
filed with the Trustee within 15 days after the same are so required to be filed
with the Commission. Delivery of such reports to the Trustee is for
informational purposes only and the Trustee's receipt of such reports shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 705. Holders' Meetings.
(a) A meeting of Holders of any or all series of Securities may be called
at any time and from time to time pursuant to the provisions of this Section 705
for any of the following purposes:
<PAGE>
(1) to give any notice to the Company or to the Trustee for such
series, or to give any directions to the Trustee for such series, or to
consent to the waiving of any default hereunder and its consequences, or
to take any other action authorized to be taken by Holders pursuant to any
of the provisions of Article Five;
(2) to remove the Trustee for such series and appoint a successor
Trustee pursuant to the provisions of Article Six;
(3) to consent to the execution of an indenture or supplemental
indentures hereto pursuant to the provisions of Section 902;
(4) to take any other action authorized to be taken by or on behalf
of the Holders of any specified aggregate principal amount of the
Outstanding Securities of any one or more or all series, as the case may
be, under any other provision of this Indenture or under applicable law.
(b) The Trustee for any series may at any time call a meeting of Holders
of such series to take any action specified in paragraph (a) of this Section
705, to be held at such time or times and at such place or places as the Trustee
for such series shall determine. Notice of every meeting of the Holders of any
series of Securities, setting forth the time and the place of such meeting and
in general terms the action proposed to be taken at such meeting, shall be given
to Holders of such series in the manner and to the extent provided in Section
105. Such notice shall be given not less than 20 days nor more than 90 days
prior to the date fixed for the meeting.
(c) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in aggregate principal amount of the Outstanding
Securities of a series or of all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of any or all
such series by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 20 days after the receipt of such request, then
the Company or such Holders may determine the time or times and the place or
places for such meetings and may call such meetings to take any action
authorized by giving notice thereof as provided in the preceding paragraph.
(d) To be entitled to vote at any meeting of Holders, a Person shall be
(i) a Holder of a Security of the series with respect to which such meeting is
being held, or (ii) a Person appointed by an instrument in writing as proxy of
such Holder. The only Persons who shall be entitled to be present or to speak at
any meeting of Holders shall be the Persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee for the series with respect
to which such meeting is being held and its counsel and any representatives of
the Company and its counsel.
(e) Notwithstanding any other provisions of this Indenture, the Trustee
for any series may make such reasonable regulations as it may deem advisable for
any meeting of Holders of such series, in regard to proof of the holding of
Securities of such series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate.
<PAGE>
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of such series as provided in paragraph (c) of this
Section 705, in which case the Company or the Holders calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by a majority
vote of the meeting.
Subject to the provisos in the definition of "Outstanding," at any meeting
each Holder of a Security of the series with respect to which such meeting is
being held or proxy therefor shall be entitled to one vote for each $1,000
principal amount (or such other amount as shall be specified as contemplated by
Section 301) of Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote
other than by virtue of Outstanding Securities of such series held by him or
instruments in writing duly designating him as proxy for one or more Holders of
Securities of such series. Any meeting of Holders with respect to which a
meeting was duly called pursuant to the provisions of paragraph (b) or (c) of
this Section 705 may be adjourned from time to time by a majority of such
Holders present and the meeting may be reconvened following such adjournment
without further notice.
(f) The vote upon any resolution submitted to any meeting of Holders with
respect to which such meeting is being held shall be by written ballots on which
shall be subscribed the signatures of such Holders or of their representatives
by proxy and the serial number or numbers of the Securities held or represented
by them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A record
in duplicate of the proceedings of each meeting of Holders shall be prepared by
the secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
transmitted as provided in paragraph (b) of this Section 705.
The record shall show the serial numbers of the Securities voting in favor of
or against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
(g) Nothing contained in this Section 705 shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to any Holder under any of the provisions of this Indenture or of the
Securities of any series.
<PAGE>
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) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation,
partnership or trust, shall be organized and validly existing under the
laws of the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, the due and punctual payment of the
principal of and any premium and interest on all the Securities and the
performance or observance of every covenant of this Indenture on the part
of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, 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 Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture, comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
Anything in this Article Eight to the contrary notwithstanding, no such
consolidation, merger, conveyance, transfer or lease shall be entered into or
made by the Company with or to another corporation which has outstanding any
obligations secured by a Mortgage if, as a result of such consolidation, merger,
conveyance or transfer, any Principal Property of the Company or any Restricted
Subsidiary would be subjected to the lien of such Mortgage and such Mortgage is
not expressly excluded from the restrictions or permitted by the provisions of
Section 1008 unless simultaneously therewith or prior thereto effective
provision shall be made for the securing of all the Securities (together with,
if the Company shall so determine, any other Debt of the Company now existing or
hereafter created which is not subordinated to the Securities), equally and
ratably with (or, at the option of the Company, prior to) the obligations
secured by such Mortgage by a lien upon such Principal Property.
<PAGE>
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities. In the case of a lease, the predecessor
Person shall not be released from its obligations to pay the principal of,
premium, if any, and interest on the Securities. All Securities issued by the
successor Person shall in all respects have the same legal priority as the
Securities theretofore or thereafter authenticated, issued and delivered in
accordance with the terms of this Indenture.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating
that such Events of Default are expressly being included solely for the
benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that
any such addition, change or elimination (a) shall neither (i) apply to
any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision, nor
(ii) modify the rights of the Holder of any such Security with respect to
such provision or (b) shall become effective only when there is no such
Security Outstanding; or
<PAGE>
(6) to secure the Securities pursuant to Sections 801 or 1008 or
otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 611(b); or
(9) to add to or change any provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities convertible into other securities; or
(10) to effectuate the provisions of Section 1405(b);
or
(11) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge and covenant defeasance with respect to any series of Securities
pursuant to Sections 1502 or 1503; provided, however, that any such action
shall not adversely affect the interests of the Holders of Securities of
such series or any other series of Securities in any material respect; or
(12) to add or change or eliminate any provisions of this Indenture
as shall be necessary or desirable in accordance with any amendments to
the Trust Indenture Act; or
(13) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action pursuant
to this Clause (13) shall not adversely affect the interests of the
Holders of Securities of any series in any material respect; or
(14) to change any place or places where (a) the principal of and
premium, if any, and interest, if any, on all or any series of Securities
shall be payable, (b) all or any series of Securities may be surrendered
for registration or transfer, (c) all or any series of Securities may be
surrendered for exchange and (d) notices and demands to or upon the
Company in respect of all or any series of Securities and this Indenture
may be served.
<PAGE>
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of, premium, if any, or interest on, any
Security, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, change the
method of determination of interest thereon, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or adversely affect any right of repayment at the
option of the Holder of any Security, or change the coin or currency in
which any Security or any premium or the interest thereon is payable or
impair the right of any Holders of Securities of a series entitled to the
conversion rights set forth in Article Fourteen to receive securities upon
the exercise of such conversion rights, or impair the right to institute
suit for the enforcement of any such payment or delivery of Common Stock
for Securities converted pursuant to Article Fourteen on or after the
Stated Maturity thereof (or, in the case of redemption or repayment at the
option of the Holder, on or after the Redemption Date or Repayment Date,
as the case may be, or in the case of such conversion, on or after the
date of conversion), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1010, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
<PAGE>
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
Officers' Certificate and Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
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.
<PAGE>
Section 907. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the appropriate Trustee of
any supplemental indenture, the Company shall transmit, as provided herein, to
all Holders of any series of the Securities affected thereby, a notice setting
forth in general terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer, conversion or exchange and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company terminates the appointment of a Paying Agent
or Security Registrar or conversion agent or otherwise shall fail to maintain
any such required office or agency, the Company shall use its reasonable best
efforts to appoint a successor Paying Agent or Security Registrar or conversion
agent reasonably acceptable to the Trustee. If the Company fails to maintain a
Paying Agent or Security Registrar or conversion agent, the Trustee will act as
such, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each Place of
Payment for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee in writing
of its action or failure so to act.
<PAGE>
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of (and premium,
if any) or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee in writing of its
action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default by the Company
(or any other obligor upon the Securities of that series) in the making of
any payment of principal (and premium, if any) or interest on the
Securities of that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security of any series and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper in
the Borough of Manhattan, The City of New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
<PAGE>
Section 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if, in the judgment of the Company, it shall no longer be necessary, advisable
or in the interest of the Company to preserve the same.
Section 1005. Statement by Officers as to Default.
Pursuant to Section 314(a) of the Trust Indenture Act, the Company will
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company ending after the date hereof, a certificate signed by the principal
executive, financial or accounting officer of the Company, stating whether or
not to the best knowledge of the signer thereof the Company is in default in the
performance and observance of any of the terms, provisions, covenants and
conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company shall be in
default, specifying all such defaults and the nature and status thereof of which
they may have knowledge.
Section 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Restricted Subsidiary to be maintained and kept
in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Restricted Subsidiary.
Section 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary, and (2) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Company or any Restricted 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.
<PAGE>
Section 1008. Restrictions on Secured Debt and on Debt of Restricted
Subsidiaries.
The Company will not itself, and will not permit any Restricted Subsidiary
to, incur, issue, assume or guarantee any Debt, after the first date on which a
Security is authenticated by the Trustee under this Indenture, which Debt is
secured by a Mortgage on any Principal Property of the Company or any Restricted
Subsidiary, or any shares of Capital Stock or Debt of any Restricted Subsidiary,
without effectively providing that the Securities of each series then
Outstanding (together with, if the Company shall so determine, any other Debt of
the Company or such Restricted Subsidiary then existing or thereafter created
which is not subordinate to the Securities of each series then Outstanding)
shall be secured equally and ratably with (or, at
the option of the Company, prior to) such secured Debt, so long as such secured
Debt shall be so secured, and the Company will not permit any Restricted
Subsidiary to incur, issue, assume or guarantee any unsecured Debt or to issue
any Preferred Stock, in each instance unless the aggregate amount of (A) all
such Debt, (B) the aggregate preferential amount to which such Preferred Stock
would be entitled on any involuntary distribution of assets and (C) Attributable
Debt of the Company and its Restricted Subsidiaries in respect of sale and
leaseback transactions (as defined in Section 1009) would not exceed 10% of
Consolidated Net Tangible Assets; provided, however, that this Section 1008
shall not apply to, and there shall be excluded from Debt in any computation
under this Section 1008:
(1) Debt secured by Mortgages on any property acquired, constructed
or improved by the Company or any Restricted Subsidiary after the first
date on which a Security is authenticated by the Trustee under this
Indenture which Mortgages are created or assumed contemporaneously with,
or within 30 months after, such acquisition, or completion of such
construction or improvement, or within six months thereafter pursuant to a
firm commitment for financing arranged with a lender or investor within
such 30-month period, to secure or provide for the payment of all or any
part of the purchase price of such property or the cost of such
construction or improvement incurred after the first date on which a
Security is authenticated by the Trustee under this Indenture, or, in
addition to Mortgages contemplated by paragraphs 2 and 3 below, Mortgages
on any property existing at the time of acquisition thereof, provided that
any such Mortgage shall not apply to any property theretofore owned by the
Company or any Restricted Subsidiary other than, in the case of any such
construction or improvement, any theretofore unimproved real property on
which the property so constructed, or the improvement, is located;
(2) Debt of any corporation existing at the time such corporation is
merged with or into the Company or a Restricted Subsidiary, provided that
such Debt was not incurred in contemplation of such merger;
(3) Debt of any corporation existing at the time such corporation
becomes a Restricted Subsidiary, provided that such Debt was not incurred
in contemplation of such corporation becoming a Restricted Subsidiary;
<PAGE>
(4) Debt of a Restricted Subsidiary to the Company or to another
Restricted Subsidiary;
(5) Debt secured by Mortgages securing obligations issued by a
state, territory or possession of the United States, or any political
subdivision of any of the foregoing, or the District of Columbia, to
finance the acquisition of or construction on property, and on which the
interest is not, in the opinion of tax counsel of recognized standing or
in accordance with a ruling issued by the Internal Revenue Service,
includable in gross income of the holder by reason of Section 103(A)(1) of
the Internal Revenue Code (or any successor to such provision) as in
effect at the time of the issuance of such obligations; and
(6) any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Debt referred to
in the foregoing clauses (1) to (5), inclusive; provided, that the
principal amount of the Debt being extended, renewed or replaced shall not
be increased and such extension, renewal or replacement, in the case of
Debt secured by a Mortgage, shall be limited to all or a part of the same
property, shares of Capital Stock or Debt that secured the Mortgage
extended, renewed or replaced (plus improvements on such property); and
provided, further, that this Section 1008 shall not apply to any issuance
of Preferred Stock by a Restricted Subsidiary to the Company or another
Restricted Subsidiary, provided that such Preferred Stock shall not
thereafter be transferable to any Person other than the Company or a
Restricted Subsidiary.
The Trustee shall have no duty or liability in monitoring or enforcing the
provisions of this Section, except as otherwise expressly provided in this
Indenture.
Section 1009. Restrictions on Sales and Leasebacks.
The Company will not itself, and will not permit any Restricted Subsidiary
to, enter into any transaction after the first date on which a Security is
authenticated by the Trustee under this Indenture with any bank, insurance
company, lender or other investor, or to which any such bank, insurance company,
lender or investor is a party, providing for the leasing by the Company or a
Restricted Subsidiary of any Principal Property which has been or is to be sold
or transferred by the Company or such Restricted Subsidiary to such bank,
insurance company, lender or investor, or to any Person to whom funds have been
or are to be advanced by such bank, insurance company, lender or investor on the
security of such Principal Property (herein referred to as a "sale and leaseback
transaction") unless, after giving effect thereto, the aggregate amount of all
Attributable Debt with respect to such transactions plus all Debt to which
Section 1008 is applicable would not exceed 10% of Consolidated Net Tangible
Assets. This covenant shall not apply to, and there shall be excluded from
Attributable Debt in any computation under this Section 1009, Attributable Debt
with respect to any sale and leaseback transaction if:
(1) the lease in such sale and leaseback transaction is for a
period, including renewal rights, of not in excess of three years, or
<PAGE>
(2) the Company or a Restricted Subsidiary, within 180 days after
the sale or transfer shall have been made by the Company or by a
Restricted Subsidiary, applies an amount not less than the greater of the
net proceeds of the sale of the Principal Property leased pursuant to such
arrangement or the fair market value of the Principal Property so leased
at the time of entering into such arrangement (as determined in any manner
approved by the Board of Directors) to the retirement of Funded Debt of
the Company ranking on a parity with or senior to the Securities or the
retirement of Funded Debt of a Restricted Subsidiary; provided, however,
that the amount to be applied to the retirement of such debt of the
Company or a Restricted Subsidiary shall be reduced by (x) the principal
amount of any Securities (or other notes or debentures constituting Funded
Debt) delivered within such 180-day period to the Trustee or other
applicable trustee for retirement and cancellation and (y) the principal
amount of such Funded Debt, other than items referred to in the preceding
clause (x), voluntarily retired by the Company or a Restricted Subsidiary
within 180 days after such sale; and provided, further, that,
notwithstanding the foregoing, no such retirement may be effected by
payment at maturity or pursuant to any mandatory sinking fund payment or
any mandatory prepayment provision, or
(3) such sale and leaseback transaction is entered into prior to, at
the time of, or within 30 months after the later of the acquisition of the
Principal Property or the completion of construction thereon, or
(4) the lease in such sale and leaseback transaction secures or
relates to obligations issued by a state, territory or possession of the
United States, or any political subdivision of any of the foregoing, or
the District of Columbia, to finance the acquisition of or construction on
property, and on which the interest is not, in the opinion tax counsel of
recognized standing or in accordance with a ruling issued by the Internal
Revenue Service, includable in gross income of the holder by reason of
Section 103(a)(1) of the Internal Revenue Code (or any successor to such
provision) as in effect at the time of the issuance of such obligations,
or
(5) such sale and leaseback transaction is entered into between the
Company and a Restricted Subsidiary or between Restricted Subsidiaries.
The Trustee shall have no duty or liability in monitoring or enforcing the
provisions of this Section, except as otherwise expressly provided in this
Indenture.
Section 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in the final paragraph of Section 801, in
Section 1004 and in Sections 1006 to 1009, inclusive, with respect to the
Securities of any series if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive compliance in such instance
or generally waive compliance with such term, provision or condition, but no
such waiver shall extend to or affect such term, provision or condition except
to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
<PAGE>
Section 1011. Calculation of Original Issue Discount.
If, at the end of any calendar year, there are Original Issue Discount
Securities then Outstanding, then within 60 days after the end of such calendar
year the Company shall file with the Trustee (i) a written notice specifying the
amount of original issue discount (including daily rates and accrual periods)
accrued on such Securities as of the end of such year, and (ii) such other
specific information relating to such original issue discount as may then be
relevant under the Internal Revenue Code, as amended from time to time.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated in Section 301 for Securities of any series) in
accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. The Company shall, at least 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor of the
Securities to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, in a manner
which the Trustee deems fair and appropriate, which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If the
Company shall so specify and identify the appropriate Securities, Securities
owned of record and beneficially by the Company or any Subsidiary shall not be
included in the Securities selected for redemption.
<PAGE>
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall, unless otherwise specified by the terms of the
Securities to be redeemed, be given not less than 30 nor more than 60 days prior
to the Redemption Date, to each Holder of Securities to be redeemed, in
accordance with Section 106.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Securities of such series are being redeemed by the Company
pursuant to provisions contained in this Indenture or the terms of the
Securities of such series or a supplemental indenture establishing such
series, if such be the case, together with a brief statement of facts
permitting such redemption,
(4) if less than all the Outstanding Securities of any series are to
be redeemed (unless all the Securities of such series of a specified tenor
are to be redeemed), the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, which shall be the office or agency
of the Company in each Place
(7) that the redemption is for a sinking fund, if such is the case.
<PAGE>
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest or, if applicable, be
convertible. Upon surrender of any such Security for redemption in accordance
with said notice, such Security shall be paid by the Company at the Redemption
Price, together with accrued interest to the Redemption Date; provided, however,
that, unless otherwise specified as contemplated by Section 301, installments of
interest whose Stated Maturity is on or prior to the Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security, and such Security shall continue to have any conversion rights then
applicable.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered. If a Global Security is so surrendered, such new
Security so issued shall be a new Global Security.
<PAGE>
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and the basis for such credit and will also deliver to
the Trustee any Securities to be so delivered which have not theretofore been
delivered to the Trustee. Not less than 30 days before each such sinking fund
payment date, the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1105, 1106 and 1107.
<PAGE>
ARTICLE THIRTEEN
REPAYMENT OF SECURITIES
AT OPTION OF HOLDERS
Section 1301. Applicability of Article.
Securities of any series that are repayable before their Stated Maturity
at the option of the Holders shall be repaid in accordance with their terms and
(except as otherwise specified as contemplated by Section 301 for Securities of
any series) in accordance with this Article.
Section 1302. Notice of Repayment Date.
Notice of any Repayment Date with respect to Securities of any series
shall, unless otherwise specified by the terms of the Securities of such series,
be given by the Company not less than 45 nor more than 60 days prior to such
Repayment Date, to the Trustee and to each Holder of Securities of such series
in accordance with Sections 105 and 106, respectively.
The notice as to Repayment Date shall state:
(1) the Repayment Date;
(2) the Repayment Price;
(3) the place or places where such Securities are to be surrendered
for payment of the Repayment Price, which shall be the office or agency of
the Company in each Place of Payment, and the date by which Securities
must be so surrendered in order to be repaid;
(4) a description of the procedure which a Holder must follow to
exercise a repayment right; and
(5) that exercise of the option to elect repayment is irrevocable.
No failure of the Company to give the foregoing notice shall limit any
Holder's right to exercise a repayment right.
Section 1303. Deposit of Repayment Price.
Prior to any Repayment Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money sufficient to pay the Repayment Price of and (except if the
Repayment Date shall be an Interest Payment Date) accrued interest on, all the
Securities of such series which are to be repaid on that date.
<PAGE>
Section 1304. Securities Payable on Repayment Date.
The form of option to elect repayment having been delivered as specified
in the form of Security for such series as provided in Section 201, the
Securities so to be repaid shall, on the Repayment Date, become due and payable
at the Repayment Price applicable thereto, and from and after such date (unless
the Company shall default in the payment of the Repayment Price and accrued
interest) such Securities shall cease to bear interest or, if applicable, be
convertible. Upon surrender of any such Security for repayment in accordance
with said notice, such Security shall be paid by the Company at the Repayment
Price, together with accrued interest to the Repayment Date; provided, however,
that, unless otherwise specified as contemplated by Section 301, installments of
interest whose Stated Maturity is on or prior to such Repayment Date will be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Date according to their terms and the provisions of Section 307.
If any Security to be repaid shall not be so paid upon surrender thereof
for repayment, the principal shall, until paid, bear interest from the Repayment
Date at the rate prescribed in the Security and such Security shall continue to
have any conversion rights then applicable.
Section 1305. Securities Repaid in Part.
Any Security which by its terms may be repaid in part at the option of the
Holder and which is to be repaid only in part shall be surrendered at any office
or agency of the Company designated for that purpose pursuant to Section 1002
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge, a new Security
or Securities of the same series and of like tenor, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unrepaid portion of the principal of the Security so
surrendered. If a Global Security is so surrendered, such new Security so issued
shall be a new Global Security.
ARTICLE FOURTEEN
CONVERSION OF SECURITIES
Section 1401. General.
If so provided in the terms of the Securities of any series established in
accordance with Section 301, the principal amount of the Securities of such
series shall be convertible into shares of Common Stock in accordance with this
Article Fourteen and the terms of such series of Securities if such terms differ
from this Article Fourteen; provided, however, that if any of the terms by which
any such Security shall be convertible into Common Stock are set forth in a
supplemental indenture entered into with respect thereto pursuant to Section
901(9) hereof, the terms of such supplemental indenture shall govern.
<PAGE>
Section 1402. Right to Convert.
Subject to and upon compliance with the provisions of this Article, the
Holder of any Security that is convertible into Common Stock shall have the
right, at such Holder's option, at any time on or after the date of original
issue of such Security or such other date specified in the applicable Board
Resolution delivered pursuant to Section 301 and prior to the close of business
on the date set forth in such Board Resolution (or if such Security is called
for redemption, then in respect of such Security to and including but not after
the close of business on the date of redemption unless the Company shall default
in the payment due on such date) to convert the principal amount of any such
Security of any authorized denomination, or, in the case of any Security to be
converted of a denomination greater than the minimum denomination for Securities
of the applicable series, any portion of such principal which is an authorized
denomination or an integral multiple thereof, into that number of fully paid and
nonassessable shares of Common Stock obtained by dividing the principal amount
of such Security or portion thereof surrendered for conversion by the Conversion
Price therefor by surrender of the Security so to be converted in whole or in
part in the manner provided in Section 1403. Such conversion shall be effected
by the Company in accordance with the provisions of this Article and the terms
of the Securities, if such terms differ from this Article.
Section 1403 Manner of Exercise of Conversion Privilege; Delivery of Common
Stock; No Adjustment for Interest or Dividends.
In order to effect a conversion, the holder of any Security to be
converted, in whole or in part, shall surrender such Security at the office or
agency maintained by the Company for such purpose, as provided in Section 1002,
and shall give written notice of conversion to the Company at such office or
agency that the Holder elects to convert such Security or the portion thereof
specified in said notice. The notice shall state the name or names (with
address), and taxpayer identification number, in which the certificate or
certificates for shares of Common Stock which shall be deliverable on such
conversion shall be registered, and shall be accompanied by payments in respect
of transfer taxes, if required pursuant to Section 1406. Each Security
surrendered for conversion shall, unless the shares of Common Stock deliverable
on conversion are to be issued in the same name as the registration of such
Security, be duly endorsed by or be accompanied by instruments of transfer, in
form satisfactory to the Company, duly executed by the Holder or such Holder's
duly authorized attorney, and by any payment required pursuant to this Section
1403. As promptly as practicable after the surrender of such Security and
notice, as aforesaid, the Company shall deliver or cause to be delivered at such
office or agency to such Holder, or on such Holder's written order, a
certificate or certificates for the number of full shares of Common Stock
deliverable upon the conversion of such Security or portion thereof in
accordance with the provisions of this Article and a check or cash in respect of
any fractional interest in respect of a share of Common Stock arising upon such
conversion as provided in Section 1404. In case any Security of a denomination
greater than the minimum denomination for Securities of the applicable series
shall be surrendered for partial conversion, the Company shall execute and
register and the Trustee shall authenticate and deliver to or upon the written
order of the Company and the Holder of the Security so surrendered, without
charge to such Holder, a new Security or Securities of the same series in
authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Security. Each conversion shall be deemed
to have been effected as of the date on which such Security shall have been
surrendered (accompanied by the funds, if any, required by the last paragraph of
this Section) and such notice received by the Company, as aforesaid, and the
person or persons in whose name or names any certificate or certificates for
shares of Common Stock shall be registrable upon such conversion shall become on
said date the Holder of record of the shares represented thereby, provided,
however, that any such surrender on any date when the stock transfer books of
the Company shall be closed shall constitute the person in whose name the
certificates are to be registered as the record holder thereof for all purposes
on the next succeeding day on which such stock transfer books are open, but such
conversion shall be at the Conversion Price in effect on the date upon which
such Security shall have been so surrendered.
<PAGE>
Any Security or portion thereof surrendered for conversion during the
period from the close of business on the Regular Record Date for any Interest
Payment Date to the opening of business on such Interest Payment Date shall
(unless such Security or portion thereof being converted shall have been called
for redemption or submitted for repayment on a date during such period) be
accompanied by payment, in legal tender or other funds acceptable to the
Company, of an amount equal to the interest otherwise payable on such Interest
Payment Date on the principal amount being converted; provided, however, that no
such payment need be made if there shall exist at the time of conversion a
default in the payment of interest on the applicable series of Securities. An
amount equal to such payment shall be paid by the Company on such Interest
Payment Date to the Holder of such Security on such Regular Record Date;
provided, however, that if the Company shall default in the payment of interest
on such Interest Payment Date, such amount shall be paid to the Person who made
such required payment. Except as provided above in this Section, no adjustment
shall be made for interest accrued on any Security converted or for dividends on
any shares issued upon the conversion of such Security as provided in this
Article.
Section 1404. Cash Payments in Lieu of Fractional Shares.
No fractional shares of Common Stock or scrip representing fractional
shares of Common Stock shall be delivered upon conversion of Securities. If more
than one Security shall be surrendered for conversion at one time by the same
Holder, the number of full shares of Common Stock which shall be deliverable
upon conversion shall be computed on the basis of the aggregate principal amount
of the Securities (or specified portions thereof to the extent permitted hereby)
so surrendered. Instead of any fraction of a share of Common Stock which would
otherwise be deliverable upon the conversion of any Security, the Company shall
pay to the Holder of such Security an amount in cash (computed to the nearest
cent, with one-half cent being rounded upward) equal to the same fraction of the
closing price (determined in the manner provided in Section 1405(a)(v)) of the
Common Stock on the Trading Day (as defined in Section 1405(a)(v)) next
preceding the date of conversion.
Section 1405. Conversion Price Adjustments; Effect of Reclassification,
Mergers, Consolidations and Sales of Assets.
(a) The Conversion Price shall be adjusted from time to time as follows:
<PAGE>
(i) In case the Company shall (x) pay a dividend or make a
distribution on the Common Stock in shares of Common Stock, (y) subdivide
the outstanding Common Stock into a greater number of shares or (z)
combine the outstanding Common Stock into a smaller number of shares, the
Conversion Price shall be adjusted so that the Holder of any Security
thereafter surrendered for conversion shall be entitled to receive the
number of shares of Common Stock of the Company which such holder would
have owned or have been entitled to receive after the happening of any of
the events described above had such Security been converted immediately
prior to the record date in the case of a dividend or the effective date
in the case of subdivision or combination. An adjustment made pursuant to
this subparagraph (i) shall become effective immediately after the record
date in the case of a dividend, except as provided in subparagraph (vii)
below, and shall become effective immediately after the effective date in
the case of a subdivision or combination.
(ii) In case the Company shall issue rights or warrants to all
holders of shares of Common Stock entitling them (for a period expiring
within 45 days after the record date mentioned below) to subscribe for or
purchase shares of Common Stock at a price per share less than the current
market price per share of Common Stock (as defined for purposes of this
subparagraph (ii) in subparagraph (v) below), the Conversion Price in
effect after the record date for the determination of stockholders
entitled to receive such rights or warrants shall be determined by
multiplying the Conversion Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding on such record date plus the number of
shares of Common Stock which the aggregate offering price of the total
number of shares of Common Stock so offered would purchase at such current
market price, and the denominator of which shall be the number of shares
of Common Stock outstanding on the record date for issuance of such rights
or warrants plus the number of additional shares of Common Stock
receivable upon exercise of such rights or warrants. Such adjustment shall
be made successively whenever any such rights or warrants are issued, and
shall become effective immediately, except as provided in subparagraph
(vii) below, after such record date.
(iii) In case the Company shall distribute to all holders of Common
Stock any shares of Capital Stock of the Company (other than Common Stock)
or evidences of its indebtedness or assets (excluding cash dividends or
distributions paid from retained earnings of the Company or dividends
payable in Common Stock) or rights or warrants to subscribe for or
purchase any of its securities (excluding those rights or warrants
referred to in subparagraph (ii) above) (any of the foregoing being
hereinafter in this subparagraph (iii) called the "Assets"), then, in each
such case, the Conversion Price shall be adjusted so that the same shall
equal the price determined by multiplying the Conversion Price in effect
immediately prior to the record date for determination of stockholders
entitled to receive such distribution by a fraction, the numerator of
which shall be the current market price per share (as defined for purposes
of this subparagraph (iii) in subparagraph (v) below) of the Common Stock
at such record date for determination of stockholders entitled to receive
such distribution less the then fair market value (as determined by the
Board of Directors, whose determination shall be conclusive) of the
portion of the Assets so distributed applicable to one share of Common
Stock, and the denominator of which shall be the current market price per
share (as defined in subparagraph (v) below) of the Common Stock at such
record date. Such adjustment shall become effective immediately, except as
provided in subparagraph (vii) below, after the record date for the
determination of stockholders entitled to receive such distribution.
<PAGE>
(iv) If, pursuant to subparagraph (ii) or (iii) above, the number of
shares of Common Stock into which a Security is convertible shall have
been adjusted because the Company has declared a dividend, or made a
distribution, on the outstanding shares of Common Stock in the form of any
right or warrant to purchase securities of the Company, or the Company has
issued any such right or warrant, then, upon the expiration of any such
unexercised right or unexercised warrant, the Conversion Price shall
forthwith be adjusted to equal the Conversion Price that would have
applied had such right or warrant never been declared, distributed or
issued.
(v) For the purpose of any computation under subparagraphs (ii) or
(iii) above, the current market price per share of Common Stock on any
date shall be deemed to be the average of the daily closing prices of the
Common Stock for the shorter of (i) 30 consecutive Trading Days ending on
the last full Trading Day on the exchange or market specified in the
second following sentence prior to the Time of Determination or (ii) the
period commencing on the date next succeeding the first public
announcement of the issuance of such rights or warrants or such
distribution through such last full Trading Day prior to the Time of
Determination. The term "Time of Determination" as used herein shall be
the time and date of the earlier of (x) the determination of stockholders
entitled to receive such rights, warrants, or distributions or (y) the
commencement of "ex-dividend" trading in the Common Stock on the exchange
or market specified in the following sentence. The closing price for each
day shall be the reported last sales price, regular way, or, in case no
sale takes place on such day, the average of the reported closing bid and
asked prices, regular way, in either case as reported on the New York
Stock Exchange Composite Tape or, if the Common Stock is not listed or
admitted to trading on the New York Stock Exchange at such time, on the
principal national securities exchange on which the Common Stock is listed
or admitted to trading or, if not listed or admitted to trading on any
national securities exchange, on the Nasdaq National Market ("NNM") or, if
the last sales price or closing bid and asked prices for the Common Stock
on each such day shall not have been reported through NNM, the average of
the bid and asked prices for such date as furnished by any New York Stock
Exchange member firm regularly making a market in the Common Stock
selected for such purpose by the Company or, if no such quotations are
available, the fair market value of the Common Stock as determined by a
New York Stock Exchange member firm regularly making a market in the
Common Stock selected for such purpose by the Company. As used herein, the
term "Trading Day" with respect to Common Stock means (x) if the Common
Stock is listed or admitted for trading on the New York Stock Exchange or
another national securities exchange, a day on which the New York Stock
Exchange or such other national securities exchange, as the case may be,
is open for business or (y) if the Common Stock is quoted on NNM, a day on
which trades may be made on NNM or (z) otherwise, any day other than a
Saturday or Sunday or a day on which banking institutions in the State of
New York are authorized or obligated by law or executive order to close.
<PAGE>
(vi) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% in
such price; provided, however, that any adjustments which by reason of
this subparagraph (vi) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this Section 1405(a) shall be made to the nearest cent
or to the nearest .01 of a share, as the case may be, with one-half cent
and .005 of a share, respectively, being rounded upward. Anything in this
Section 1405(a) to the contrary notwithstanding, the Company shall be
entitled to make such reductions in the Conversion Price, in addition to
those required by this Section 1405(a), as it in its discretion shall
determine to be advisable in order that any stock dividend, subdivision of
shares, distribution of rights or warrants to purchase stock or
securities, or distribution of other assets (other than cash dividends)
hereafter made by the Company to its stockholders shall not be taxable.
(vii) In any case in which this Section 1405(a) provides that an
adjustment shall become effective immediately after a record date for an
event, the Company may defer until the occurrence of such event (x)
issuing to the Holder of any Security converted after such record date and
before the occurrence of such event the additional shares of Common Stock
issuable upon such conversion by reason of the adjustment required by such
event over and above the Common Stock issuable upon such conversion before
giving effect to such adjustment and (y) paying to such holder any amount
of cash in lieu of any fractional share of Common Stock pursuant to
Section 1404.
(viii) Whenever the Conversion Price is adjusted as herein provided,
the Company shall file with the Trustee an Officers' Certificate, setting
forth the Conversion Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment, which certificate shall
be conclusive evidence of the correctness of such adjustment; provided,
however, that the failure of the Company to file such Officers'
Certificate shall not affect the legality or validity of any corporate
action by the Company.
(ix) Whenever the Conversion Price for any series of Securities is
adjusted as provided in this Section 1405(a), the Company shall cause to
be mailed to each Holder of Securities of such series at its then
registered address by first-class mail, postage prepaid, a notice of such
adjustment of the Conversion Price setting forth such adjusted Conversion
Price and the effective date of such adjusted Conversion Price; provided,
however, that the failure of the Company to give such notice shall not
affect the legality or validity of any corporate action by the Company.
<PAGE>
(b) (i) Notwithstanding any other provision herein to the contrary, if any
of the following events occur, namely (x) any reclassification or change
of outstanding shares of Common Stock (other than a change in par value,
or from par value to no par value, or from no par value to par value, or
as a result of a subdivision or combination of the Common Stock), (y) any
consolidation, merger or combination of the Company with or into another
corporation as a result of which holders of Common Stock shall be entitled
to receive stock, securities or other property or assets (including cash)
with respect to or in exchange for such Common Stock, or (z) any sale or
conveyance of all or substantially all of the assets of the Company to any
other entity as a result of which holders of Common Stock shall be
entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common Stock,
then appropriate provision shall be made by supplemental indenture so that
(A) the Holder of any outstanding Security that is convertible into Common
Stock shall have the right to convert such Security into the kind and
amount of the shares of stock and securities or other property or assets
(including cash) that would have been receivable upon such
reclassification, change, consolidation, merger, combination, sale, or
conveyance by a holder of the number of shares of Common Stock issuable
upon conversion of such Security immediately prior to such
reclassification, change, consolidation, merger, combination, sale or
conveyance and (B) the number of shares of any such other stock or
securities into which such Security shall thereafter be convertible shall
be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the terms of adjustment provided for
in this Section, and Sections 1402, 1403, 1404, 1406, 1407, 1408 and 1409
shall apply on like terms to any such other stock or securities.
(ii) In case of any reclassification or change of the Common Stock
(other than a subdivision or combination of its outstanding Common Stock,
or a change in par value, or from par value to no par value, or from no
par value to par value), or of any consolidation, merger or combination of
the Company with or into another corporation or of the sale or conveyance
of all or substantially all of the assets of the Company, the Company
shall cause to be filed with the Trustee and to be mailed to each Holder
of Securities that are convertible into shares of Common Stock at such
Holder's registered address, the date on which such reclassification,
change, consolidation, merger, combination, sale or conveyance is expected
to become effective, and the date as of which it is expected that holders
of Common Stock shall be entitled to exchange their Common Stock for
stock, securities or other property deliverable upon such
reclassification, change, consolidation, merger, combination, sale or
conveyance.
Section 1406. Taxes on Shares Issued.
The delivery of stock certificates upon conversions of Securities shall be
made without charge to the Holder converting a Security for any tax in respect
of the issue thereof. The Company shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the delivery of
stock registered in any name other than of the Holder of any Security converted,
and the Company shall not be required to deliver any such stock certificate
unless and until the person or persons requesting the delivery thereof shall
have paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
<PAGE>
Section 1407. Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock.
The Company covenants that all shares of Common Stock which may be
delivered upon conversion of Securities of any series which are convertible into
Common Stock will upon delivery be fully paid and nonassessable by the Company
and free from all taxes, liens and charges with respect to the issue thereof.
The Company covenants that if any shares of Common Stock to be provided
for the purpose of conversion of Securities hereunder require registration with
or approval of any governmental authority under any Federal or state law before
such shares may be validly delivered upon conversion, the Company will in good
faith and as expeditiously as possible endeavor to secure such registration or
approval, as the case may be.
The Company further covenants that it will, if permitted by the rules of
the New York Stock Exchange or such other national stock exchange on which the
Common Stock is listed or admitted to trading or if permitted by the rules of
Nasdaq if the Common Stock is approved by it for listing or quotation, list and
keep listed for so long as the Common Stock shall be so listed on such exchange,
upon official notice of issuance, all Common Stock deliverable upon conversion
of Securities of any series which are convertible into Common Stock.
Section 1408. Responsibility of Trustee.
Neither the Trustee nor any conversion agent shall at any time be under
any duty or responsibility to any Holder of Securities to determine whether any
facts exist which may require any adjustment of the Conversion Price applicable
to such Securities, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same, or
whether any such supplemental indenture need be entered into. Neither the
Trustee nor any conversion agent shall be accountable with respect to the
validity or value (or the kind or amount) of any shares of Common Stock, or of
any securities or property, which may at any time be delivered upon the
conversion of any Security; and neither the Trustee nor any conversion agent
makes any representation with respect thereto. Neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company to deliver
any shares of Common Stock or stock certificates or other securities or property
or cash upon the surrender of any Security for the purpose of conversion or for
any failure of the Company to comply with any of the covenants of the Company
contained in this Article Fourteen.
Section 1409. Covenant to Reserve Shares.
The Company covenants that it will at all times reserve and keep
available, free from pre-emptive rights, out of its authorized but unissued
Common Stock, such number of shares of Common Stock as shall then be deliverable
upon the conversion of all Outstanding Securities of any series of Securities
which are convertible into Common Stock.
<PAGE>
Section 1410. Other Conversions.
If so provided in a Board Resolution with respect to the Securities of a
series, the principal amount of the Securities of such series may be convertible
into or exchangeable for a principal amount of other securities of the Company
(which other securities may be issued under this Indenture or otherwise) or
convertible into or exchangeable for securities of another Person, and the
issuance of such securities upon any such conversion or exchange shall be made
in accordance with the terms of such Board Resolution.
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1501. Applicability of Article; Company's Option to Effect Defeasance or
Covenant Defeasance.
If pursuant to Section 301 provision is made for either or both of (a)
defeasance of the Securities of a series under Section 1502 or (b) covenant
defeasance of the Securities of a series under Section 1503, then the provisions
of such Section or Sections, as the case may be, together with the other
provisions of this Article Fifteen, shall be applicable to the Securities of
such series, and the Company may at its option by Board Resolution, at any time,
with respect to the Securities of such series, elect to have either Section 1502
(if applicable) or Section 1503 (if applicable) be applied to the Outstanding
Securities of such series upon compliance with the conditions set forth below in
this Article Fifteen.
Section 1502. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this Section
with respect to the Outstanding Securities of a particular series, the Company
shall be deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series on and after the date the conditions
precedent set forth below are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities of
such series and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company and upon Company Request, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of Outstanding Securities of such series to receive, solely from the
trust fund described in Section 1504 as more fully set forth in such Section,
payments of the principal of and any premium and interest on such Securities
when such payments are due, (B) the Company's obligations with respect to such
Securities under Section 304, 305, 306, 607, 1002 and 1003 and such obligations
as shall be ancillary thereto, (C) the rights, powers, trusts, duties,
immunities and other provisions in respect of the Trustee hereunder and (D) this
Article Fifteen. Subject to compliance with this Article Fifteen, the Company
may exercise its option under this Section 1502 notwithstanding the prior
exercise of its option under Section 1503 with respect to the Securities of such
series.
<PAGE>
Section 1503. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this Section
with respect to the Outstanding Securities of a particular series, the Company
shall be released from its obligations under the final paragraph of Section 801
and under Sections 1006, 1007, 1008 and 1009 (and any other covenant applicable
to such Securities that is determined pursuant to Section 301 to be subject to
covenant defeasance under this Section) and the occurrence of an event specified
in Clause (4) of Section 501 with respect to the final paragraph of Section 801
or any of Sections 1006, 1007, 1008 or 1009 (and any other Event of Default
applicable to such Securities that is determined pursuant to Section 301 to be
subject to covenant defeasance under this Section) shall not be deemed to be an
Event of Default with respect to the Outstanding Securities of such series on
and after the date the conditions set forth below are satisfied (hereinafter,
"covenant defeasance"). For this purpose, such covenant defeasance means that,
with respect to the Outstanding Securities of such series, the Company may omit
to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or Clause whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or
Clause or by reason of any reference in any such Section or Clause to any other
provision herein or in any other document, but the remainder of this Indenture
and such Securities shall be unaffected thereby.
Section 1504. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent to application of either
Section 1502 or Section 1503 to the Outstanding Securities of a particular
series:
<PAGE>
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this
Article Fifteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Securities,
(A) money in an amount, or (B) Qualified Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment, money in an amount, or (C) a combination
thereof, sufficient, without reinvestment, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereto delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, (i) the principal of and any premium and interest on the
Outstanding Securities of such series on the maturity of such principal,
premium or interest and (ii) any mandatory sinking fund payments or
analogous payments applicable to the Outstanding Securities of such series
on the day on which such payments are due in accordance with the terms of
this Indenture and of such Securities. Before such a deposit, the Company
may make arrangements satisfactory to the Trustee for the redemption of
Securities at a future date or dates in accordance with Article Eleven,
which shall be given effect in applying the foregoing. For this purpose,
"Qualified Obligations" means U.S. Government Obligations and Other
Qualified Obligations. "U.S. Government Obligations" means securities that
are (a) direct obligations of the United States of America for the payment
of which its full faith and credit is pledged or (b) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of
which is unconditionally guaranteed as a full faith and credit obligation
by the United States of America, which, in either case, are not callable
or redeemable at the option of the issuer thereof, and shall also include
a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any
such U.S. Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such custodian for
the account of the holder of such depositary receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt
from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal of or interest
on the U.S. Government Obligation evidenced by such depositary receipt.
"Other Qualified Obligations" means (x) any deposit which is fully insured
by (i) the Federal Deposit Insurance Corporation or (ii) an insurance
company whose ability to pay claims has received one of the three highest
ratings from a nationally recognized rating agency pursuant to a policy in
a form that has been approved by a nationally recognized rating agency, or
(y) any deposit which is made with any bank situated in the United States
whose commercial paper has received one of the three highest ratings from
a nationally recognized rating agency. For purposes of this definition, a
bank shall be deemed to have commercial paper that has received one of the
three highest ratings of a particular rating agency if the bank is the
principal subsidiary of a bank holding company and the commercial paper of
the bank holding company has received one of the three highest ratings of
such agency. A bank shall be deemed the principal subsidiary of a bank
holding company if the bank's net worth exceeds 66 2/3% of the
consolidated net worth of the bank holding company.
(2) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing (A) on the date of such
deposit or (B) insofar as subsections 501(6) and (7) are concerned, at any
time during the period ending on the 91st day after the date of such
deposit or, if longer, ending on the day following the expiration of the
longest preference period applicable to the Company in respect of such
deposit (it being understood that the condition in this condition shall
not be deemed satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A) cause the
Trustee for the Securities of such series to have a conflicting interest
as defined in Section 608 or for purposes of the Trust Indenture Act with
respect to any securities of the Company or (B) result in the trust
arising from such deposit to constitute, unless it is qualified as, a
regulated investment company under the Investment Company Act of 1940, as
amended.
<PAGE>
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a party or by
which it is bound.
(5) In the case of an election under Section 1502, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there
has been a change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such defeasance had not occurred.
(6) In the case of an election under Section 1503, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(7) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may
be imposed on the Company in connection therewith pursuant to Section 301.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
1502 or the covenant defeasance under Section 1503 (as the case may be)
have been complied with.
Section 1505. Deposited Money and Qualified Obligations to be Held in Trust;
Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and Qualified Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee - collectively, for purposes for this
Section 1505, the "Trustee") pursuant to Section 1504 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent (but not
including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, but such money
need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the money or Qualified Obligations
deposited pursuant to Section 1504 or the principal and interest received in
respect thereof.
<PAGE>
Anything herein to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon Company Request any money or
Qualified Obligations held by it as provided in Section 1504 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
Section 1506. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1502 or 1503 with respect to the Securities of any
series by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had
occurred pursuant to this Article Fifteen until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
1502 or 1053; provided, however, that if the Company makes any payment of the
principal of or any premium or interest on any such Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money held by
the Trustee or the Paying Agent.
ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS,
SHAREHOLDERS, OFFICERS AND DIRECTORS
Section 1601. Immunity of Incorporators, Shareholders, Officers and Directors.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, shareholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations, and that no
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, shareholders, officers or directors, as such, of the Company or
any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by this Indenture or in any of the
Securities or implied therefrom; and that any and all such personal liability of
every name and nature, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, shareholder, officer or director, as such, because of the creation
of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom are hereby expressly waived and released as a condition of,
and as a consideration for, the execution of this Indenture and the issue of
such Securities.
* * *
<PAGE>
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
RICHFOOD HOLDINGS, INC.
By: _______________________________
Its: _______________________________
THE BANK OF NEW YORK, as Trustee
By: __________________________________
Its:__________________________________
Exhibit 4.2
RICHFOOD HOLDINGS, INC.
AND
THE BANK OF NEW YORK, Trustee
Indenture
Dated as of __________ __, 199_
Subordinated Debt Securities
<PAGE>
Reconciliation and Tie Between
the Trust Indenture Act of 1939 and Indenture,
Dated as of __________ __, 199_*
Trust Indenture
Act Section Indenture Section
ss. 310(a)(1)............................................................. 609
(a)(2).............................................................. 609
(a)(3)....................................................Not Applicable
(a)(4)....................................................Not Applicable
(a)(5)..........................................................608, 610
(b).............................................................608, 610
(c).......................................................Not Applicable
ss. 311(a)................................................................ 613
(b)..................................................................613
ss. 312(a).........................................................701, 702(a)
(b)...............................................................702(b)
(c)................................................................. 703
ss. 313(a).................................................................703
(b)..................................................................703
(c)..................................................................703
(d)..................................................................703
ss. 314(a)...........................................................704, 1005
(b).......................................................Not Applicable
(c)(1)...............................................................102
(c)(2)...............................................................102
(c)(3)....................................................Not Applicable
(d).......................................................Not Applicable
(e)..................................................................102
(f).......................................................Not Applicable
ss. 315(a).................................................................601
(b)..................................................................602
(c)..................................................................601
(d)..................................................................601
(e)..................................................................514
ss. 316(a).................................................................101
(a)(1)(A)............................................................512
(a)(1)(B)............................................................513
(a)(2)....................................................Not Applicable
(b)..................................................................508
ss. 317(a)(1)..............................................................503
(a)(2)...............................................................504
(b).................................................................1003
ss. 318(a).................................................................107
(c)..................................................................107
- ---------------------
* This table shall not, for any purpose, be deemed to be a part of the
Indenture.
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions......................................... 1
Section 102. Compliance Certificates and Opinions................ 9
Section 103. Form of Documents Delivered to Trustee.............. 10
Section 104. Acts of Holders; Record Dates....................... 10
Section 105. Notices, Etc., to Trustee and Company............... 12
Section 106. Notice to Holders; Waiver........................... 12
Section 107. Conflict with Trust Indenture Act................... 14
Section 108. Effect of Headings and Table of Contents............ 14
Section 109. Successors and Assigns.............................. 14
Section 110. Separability Clause................................. 14
Section 111. Benefits of Indenture............................... 14
Section 112. Governing Law....................................... 14
Section 113. Legal Holidays...................................... 15
ARTICLE TWO
SECURITY FORMS
Section 201. Forms of Securities................................. 15
Section 202. Form of Trustee's Certificate of Authentication..... 16
Section 203. Securities in Global Form........................... 16
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series................ 16
Section 302. Denominations....................................... 18
Section 303. Execution, Authentication, Delivery and Dating...... 18
Section 304. Temporary Securities................................ 20
Section 305. Registration, Registration of Transfer and Exchange
and Book-Entry Securities........................... 21
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.... 23
Section 307. Payment of Interest; Interest Rights Preserved...... 24
Section 308. Persons Deemed Owners............................... 25
Section 309. Cancellation........................................ 26
Section 310. Computation of Interest............................. 26
Section 311. CUSIP Numbers....................................... 26
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture............. 27
Section 402. Application of Trust Money.......................... 28
ARTICLE FIVE
REMEDIES
Section 501. Events of Default................................... 28
Section 502. Acceleration of Maturity; Rescission and Annulment.. 31
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.......................................... 33
Section 504. Trustee May File Proofs of Claim.................... 34
Section 505. Trustee May Enforce Claims Without Possession of
Securities.......................................... 34
Section 506. Application of Money Collected...................... 34
Section 507. Limitation on Suits................................. 35
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest................................ 36
Section 509. Restoration of Rights and Remedies.................. 36
Section 510. Rights and Remedies Cumulative...................... 36
Section 511. Delay or Omission Not Waiver........................ 36
Section 512. Control by Holders.................................. 37
Section 513. Waiver of Past Defaults............................. 37
Section 514. Undertaking for Costs............................... 38
Section 515. Waiver of Stay or Extension Laws.................... 38
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities................. 39
Section 602. Notice of Defaults.................................. 40
Section 603. Certain Rights of Trustee........................... 40
Section 604. Not Responsible for Recitals or Issuance of
Securities.......................................... 42
Section 605. May Hold Securities................................. 42
Section 606. Money Held in Trust................................. 43
Section 607. Compensation and Reimbursement...................... 43
Section 608. Disqualification; Conflicting Interests............. 44
Section 609. Corporate Trustee Required; Eligibility............. 44
Section 610. Resignation and Removal; Appointment of Successor... 44
Section 611. Acceptance of Appointment by Successor.............. 46
Section 612. Merger, Conversion, Consolidation or Succession to
Business............................................ 47
Section 613. Preferential Collection of Claims Against Company... 47
Section 614. Appointment of Authenticating Agent................. 48
<PAGE>
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of
Holders............................................... 49
Section 702. Preservation of Information; Communications
to Holders............................................ 50
Section 703. Reports by Trustee.................................... 50
Section 704. Reports by Company.................................... 50
Section 705. Holders' Meetings..................................... 51
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms.. 53
Section 802. Successor Substituted................................. 54
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.... 54
Section 902. Supplemental Indentures With Consent of Holders....... 56
Section 903. Execution of Supplemental Indenture................... 57
Section 904. Effect of Supplemental Indentures..................... 58
Section 905. Conformity with Trust Indenture Act................... 58
Section 906. Reference in Securities to Supplemental Indentures.... 58
Section 907. Notice of Supplemental Indenture...................... 58
Section 908. Subordination Unimpaired.............................. 58
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest............ 58
Section 1002. Maintenance of Office or Agency....................... 59
Section 1003. Money for Securities Payments to Be Held in Trust..... 59
Section 1004. Corporate Existence................................... 61
Section 1005. Statement by Officers as to Default................... 61
Section 1006. Usury Laws............................................ 61
Section 1007. Waiver of Certain Covenants........................... 61
Section 1008. Calculation of Original Issue Discount................ 61
<PAGE>
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.............................. 62
Section 1102. Election to Redeem; Notice to Trustee................. 62
Section 1103. Selection by Trustee of Securities to Be Redeemed..... 62
Section 1104. Notice of Redemption.................................. 63
Section 1105. Deposit of Redemption Price........................... 64
Section 1106. Securities Payable on Redemption Date................. 64
Section 1107. Securities Redeemed in Part........................... 64
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.............................. 65
Section 1202. Satisfaction of Sinking Fund Payments with
Securities............................................ 65
Section 1203. Redemption of Securities for Sinking Fund............. 65
ARTICLE THIRTEEN
REPAYMENT OF SECURITIES AT OPTION OF HOLDERS
Section 1301. Applicability of Article.............................. 66
Section 1302. Notice of Repayment Date.............................. 66
Section 1303. Deposit of Repayment Price............................ 67
Section 1304. Securities Payable on Repayment Date.................. 67
Section 1305. Securities Repaid in Part............................. 67
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
Section 1401. Securities Subordinate to Senior Indebtedness......... 68
Section 1402. Trustee and Holders of Securities May Rely on
Certificate of Liquidating Agent; Trustee May Require
Further Evidence as to Ownership of Senior
Indebtedness; Trustee Not Fiduciary to Holders of
Senior Indebtedness................................... 70
Section 1403. Payment Permitted If No Default....................... 71
Section 1404. Trustee Not Charged with Knowledge of Prohibition..... 71
Section 1405. Trustee to Effectuate Subordination................... 72
Section 1406. Rights of Trustee as Holder of Senior Indebtedness.... 72
Section 1407. Article Applicable to Paying Agents................... 72
Section 1408. Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Indebtedness...... 72
ARTICLE FIFTEEN
CONVERSION OF SECURITIES
Section 1501. General............................................... 73
Section 1502. Right to Convert...................................... 73
Section 1503. Manner of Exercise of Conversion Privilege; Delivery
of Common Stock; No Adjustment for Interest or
Dividends............................................. 74
Section 1504. Cash Payments in Lieu of Fractional Shares............ 75
Section 1505. Conversion Price Adjustments; Effect of
Reclassification, Mergers, Consolidations and Sales of
Assets................................................ 75
Section 1506. Taxes on Shares Issued................................ 79
Section 1507. Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock................. 79
Section 1508. Responsibility of Trustee............................. 80
Section 1509. Covenant to Reserve Shares............................ 80
Section 1510. Other Conversions..................................... 80
ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS, SHAREHOLDERS,
OFFICERS AND DIRECTORS
Section 1601. Immunity of Incorporators, Shareholders, Officers and
Directors............................................. 81
<PAGE>
INDENTURE, dated as of __________ __, 199_, between RICHFOOD HOLDINGS,
INC., a corporation duly organized and existing under the laws of the
Commonwealth of Virginia (herein called the "Company"), having its principal
office at 4860 Cox Road, Glen Allen, Virginia 23060, and THE BANK OF NEW YORK, a
banking corporation duly organized and existing under the laws of the State of
New York, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to
them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
<PAGE>
(4) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Authorized Newspaper" means a newspaper of general circulation in the
relevant area, printed in the English language and customarily published on each
Business Day therein.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board or any director or directors and/or
officer or officers of the Company to whom that board or committee shall have
duly delegated its authority.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Stock", as applied to the stock of any corporation, means the
capital stock of every class whether now or hereafter authorized, regardless of
whether such capital stock shall be limited to a fixed sum or percentage with
respect to the rights of the holders thereof to participate in dividends and in
the distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of such corporation.
<PAGE>
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Stock" means any Capital Stock of any class of the Company which
has no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding up of the
Company and which is not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its President or any Vice President, and by its Chief
Financial Officer, Controller, Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary, and delivered to the Trustee.
"Conversion Price" means, with respect to any series of Securities which
are convertible into Common Stock, the price per share of Common Stock at which
the Securities of such series are so convertible as set forth in the Board
Resolution with respect to such series (or in any supplemental indenture entered
into pursuant to Section 901(8) with respect to such series), as the same may be
adjusted from time to time in accordance with Section 1505 (or such supplemental
indenture pursuant to Section 1501).
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of execution of this Indenture is located at 101
Barclay Street, Floor 21 West, New York, New York 10286, Attention: Corporate
Trust Trustee Administration.
"corporation" includes corporations, associations, companies and business
trusts.
"Debt" means (without duplication), with respect to any Person, (i) every
obligation of such Person for money borrowed, (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
every reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such Person
and (iv) every obligation of the type referred to in clauses (i) through (iii)
of another Person, the payment of which such Person has guaranteed or is
responsible or liable for, directly or indirectly, as obligor, guarantor or
otherwise (but only, in the case of this clause, (iv) to the extent such Person
has guaranteed or is responsible or liable for such obligations).
"Defaulted Interest" has the meaning specified in Section 307.
<PAGE>
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of a Global Security, a clearing agency registered under
the Securities Exchange Act of 1934, as amended, or any successor thereto, which
shall in either case be designated by the Company pursuant to Section 301 or 305
until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Securities of that
series.
"Event of Default" has the meaning specified in Section 501.
"Funded Debt" means (a) all Debt of the Company and each Subsidiary of the
Company maturing on, or renewable or extendible at the option of the obligor to,
a date more than one year from the date of the determination thereof, (b)
capital lease obligations payable on a date more than one year from the date of
the determination thereof, (c) guarantees, direct or indirect, and other
contingent obligations of the Company and each Subsidiary of the Company in
respect of, or to purchase or otherwise acquire or be responsible or liable for
(through the investment of funds or otherwise), any obligations of the type
described in the foregoing clauses (a) and (b) of others (but not including
contingent liabilities on customer receivables sold with recourse), and (d)
amendments, renewals, extensions and refundings of any obligations of the type
described in the foregoing clauses (a), (b) and (c).
"Global Security or Securities" means one or more fully registered
Securities in global form evidencing all or a part of a series of Securities
issued to the Depositary for such series or its nominee or registered in the
name of the Depositary or its nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established as contemplated
by Section 301.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or by repayment or otherwise.
<PAGE>
"Officers' Certificate" means a certificate signed by at least two
officers of the Company, one signature being that of the Chairman of the Board,
the Chief Executive Officer, the President or any Vice President, and the other
signature being that of the Chief Financial Officer, Controller, Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii)Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
and
(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.
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502, and (b) Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
<PAGE>
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" means any Capital Stock of any class of the Company
which has a preference over Common Stock in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which is not mandatorily redeemable or repayable,
or redeemable or repayable at the option of the Holder, otherwise than in shares
of Common Stock or Preferred Stock of another class or series or with the
proceeds of the sale of Common Stock or Preferred Stock.
"Principal Property", means any manufacturing or processing plant, office
facility, retail store, warehouse or distribution center, including, in each
case, the fixtures appurtenant thereto, located within the continental United
States and owned and operated now or hereafter by the Company or any Restricted
Subsidiary and having a book value on the date as of which the determination is
being made of more than 3% of Consolidated Net Tangible Assets.
"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.
<PAGE>
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee customarily performing corporate trust functions.
"Restricted Subsidiary" means a Subsidiary of the Company, substantially
all the property of which is located, or substantially all the business of which
is carried on, with the present 50 States of the United States and which (i)
owns a Principal Property as of the date hereof, or (ii) acquires a Principal
Property after the date hereof from the Company or a Restricted Subsidiary other
than for cash equal to such property's fair market value as determined by the
Board of Directors, or (iii) acquires a Principal Property after the date hereof
by purchase with funds substantially all of which are provided by the Company or
a Restricted Subsidiary or with the proceeds of indebtedness for money borrowed,
which indebtedness is guaranteed in whole or in part by the Company or a
Restricted Subsidiary; provided, however, that "Restricted Subsidiary" shall not
include any Equity Store or Person participating in the Business Development
Program. For purposes of this definition, (a) "Equity Store" means a Person in
which the Company or any of its Subsidiaries has invested capital or to which it
has made loans in accordance with the business practice of the Company and its
Subsidiaries of making equity investments in Persons, and making or guaranteeing
loans to such Persons, for the purpose of assisting such Persons in acquiring,
remodeling, refurbishing, expanding or operating one or more retail grocery
stores and pursuant to which such Persons are permitted or required to reduce
the Company's or the Subsidiary's equity interest to a minority position over
time, and (b) "Business Development Program" means the business practice of the
Company and its Subsidiaries of making or guaranteeing loans to, or making
equity investments in, third parties engaged in the retail grocery business in
exchange for long-term supply agreements with the Company or any Subsidiary.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
<PAGE>
"Senior Indebtedness" means the principal of, premium, if any, and
interest on, and any other payment due pursuant to the terms of, an instrument
(including, without limitation of, fees, expenses, collection expenses
(including attorneys' fees), interest yield amounts, post-petition interest
(whether or not earned) and taxes) creating, securing or evidencing any of the
following, whether outstanding on the date of the Indenture or thereafter
incurred or created: (a) all indebtedness of the Company for money borrowed or
constituting reimbursement obligations with respect to letters of credit and
interest or currency swap agreements (including indebtedness secured by a
mortgage, conditional sales contract or other lien which is (i) given to secure
all or a part of the purchase price of property subject thereto, whether given
to the vendor of such property or to another, or (ii) existing on property at
the time of acquisition thereof); (b) all indebtedness of the Company evidenced
by notes, debentures, bonds or other securities sold by the Company for money;
(c) lease obligations (including but not limited to capitalized lease
obligations); (d) all indebtedness of others of the kinds described in either of
the preceding clauses (a) or (b) and all lease obligations and obligations of
others of the kind described in the preceding clause (c) assumed by or
guaranteed in any manner by the Company or in effect guaranteed by the Company
through an agreement to purchase, contingent or otherwise; and (e) all (whether
initial or seriatim) renewals, deferrals, increases, extensions or refundings of
and modifications to indebtedness of the kinds described in any of the preceding
clauses (a), (b) or (d) and all renewals or extensions of leases of the kinds
described in either of the preceding clauses (c) or (d); unless, in the case of
any particular indebtedness, lease, renewal, extension or refunding, the
instrument or lease creating or evidencing the same or the assumption or
guarantee of the same expressly provides that such indebtedness, lease, renewal,
extension, deferral, increase, modification or refunding is not superior in
right of payment to the Securities or is expressly subordinated by its terms in
right of payment to all other indebtedness of the Company (including the
Securities).
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal or such installment of
principal, premium, if any, or interest on such Security is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of Capital 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.
<PAGE>
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"United States" means the United States of America.
"Vice President", when used with respect to the Company, means any vice
president, whether or not designated by a number or a word or words added before
or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than the certificate provided
for in Section 1005) shall include:
(1) A statement that each individual signing such certificate or opinion has
read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
<PAGE>
(4) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion are based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
<PAGE>
(b) The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(e) The Company may, in the circumstances permitted by the Trust Indenture
Act, fix any day as the record date for the purpose of determining the Holders
of Outstanding Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series made by any Person in
respect of any such action, or , in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders of
one or more series of Securities, only the Holders of Outstanding Securities of
such series on such date (or their duly designated proxies) shall be entitled to
give or take, or vote on, the relevant action.
(f) Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount. Any notice given or action
taken by a Holder or its agents with regard to different parts of such principal
amount pursuant to this paragraph shall have the same effect as if given or
taken by separate Holders of each such different part.
(g) Without limiting the generality of the foregoing, unless otherwise
specified pursuant to Section 301 or pursuant to one or more indentures
supplemental hereto, a Holder, including a Depositary that is the Holder of a
Global Security, may make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken by
Holders, and a Depositary that is the Holder of a Global Security may provide
its proxy or proxies to the beneficial owners of interests in any such Global
Security through such Depositary's standing instructions and customary
practices.
<PAGE>
(h) The Trustee shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interests in any Global Security held by a
Depositary entitled under the procedures of such Depositary to make, give or
take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed
to it at the address of its principal office specified in the first
paragraph of this instrument, Attention: President, or at any other
address previously furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture or any Security provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice to a Holder
which is mailed in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not such Holder receives such notice. Where
this Indenture or any Security provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
<PAGE>
In case, by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause, it shall be impracticable to give
notice of any event to Holders by mail when such notice is required to be given
pursuant to any provision of this Indenture or any Security, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder and thereunder.
<PAGE>
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture
Act through the operation of Section 318(c) thereof, such imposed duties shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or shall be
deemed to be so excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, any Paying Agent, the Holders and the holders of Senior Indebtedness,
any benefit or any legal or equitable right, remedy or claim under this
Indenture; provided that this Section 111 shall not limit the rights of any
Holder of a Global Security to give any notice or take any action, or appoint
any agents, with regard to any part or different parts of the principal amount
of such Global Security pursuant to Section 104.
Section 112. Governing Law.
This Indenture and the Securities and the rights, duties, standard of care
and immunities of the Trustee in connection with the administration of its trust
hereunder shall be governed by the laws of the State of New York and for all
purposes shall be governed by the laws of said State without regard to the
conflicts of laws and rules of said State.
<PAGE>
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date or Stated Maturity of any Security shall not be
a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of interest or
principal (and premium, if any) need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made on
the Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment
date or at the Stated Maturity, provided that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date or Stated Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms of Securities.
The Securities of each series shall be in such form or forms (including
global form) as shall be established by or pursuant to a Board Resolution or in
one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with any law or with any rules made pursuant thereto or the
rules of any securities exchange or as may, consistently herewith, be determined
by the officers executing such Securities, as evidenced by their execution of
such Securities. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The Trustee's certificates of authentication shall be in substantially the
form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved or
may be produced in any other manner permitted by the rules of any securities
exchange upon which the Securities may be listed and (with respect to Global
Securities of any Series) the rules of the Depositary, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
<PAGE>
Section 202. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By______________________________
Authorized Signatory
Section 203. Securities in Global Form.
If any Security of a series is issuable in global form, such Security may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and also may provide that the aggregate
amount of Outstanding Securities represented thereby may from time to time be
reduced to reflect exchanges. Any endorsement of a Security in global form to
reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee and in such manner
as shall be specified in such Security. Any instructions by the Company with
respect to a Security in global form, after its initial issuance, shall be in
writing but need not comply with Section 102.
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. All Securities of each
series issued under this Indenture shall in all respects be equally and ratably
entitled to the benefits hereof with respect to such series without preference,
priority or distinction on account of the actual time of the authentication and
delivery or Maturity of the Securities of such series. There shall be
established in or pursuant to a Board Resolution, and, to the extent not set
forth therein, set forth in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of Securities of any
series:
(1) the title of the Securities of the series (which shall distinguish the
Securities of the series from all other series of Securities);
<PAGE>
(2) any limit upon the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of that
series pursuant to Section 304, 305, 306, 906, 1107, 1305 or 1503);
(3) the date or dates, or the method by which such date or dates will be
determined or extended, on which the principal and premium, if any, of the
Securities of the series is payable;
(4) the rate or rates (which may be fixed or floating), or the method of
determination thereof, at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be payable and the
Regular Record Date, if any, for the interest payable on any Interest
Payment Date;
(5) if other than the Corporate Trust Office, the place or places where the
principal of (and premium, if any) and interest on Securities of the
series shall be payable;
(6) the period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series may be redeemed,
in whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem or purchase Securities of
the series pursuant to any sinking fund or analogous provisions or at the
option of a Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities
of the series shall be redeemed or purchased, in whole or in part, pursuant
to such obligation;
(8) if other than denominations of $1,000 and any integral multiple thereof,
the denominations in which Securities of the series shall be issuable;
(9) if other than the principal amount thereof, the portion of the principal
amount of Securities of the series which shall be payable upon declaration
of acceleration of the Maturity thereof pursuant to Section 502;
(10) if the Securities of the series shall be issued in whole or in part in the
form of a Global Security or Securities, the Depositary for such Global
Security or Securities;
<PAGE>
(11) any addition to or change in the Events of Default which applies to any
Securities of the series;
(12) any addition to or change in the covenants set forth in Article Ten which
applies to Securities of the series;
(13) if the Securities of the series are convertible into Common Stock, the
Conversion Price therefor, the period during which such Securities are
convertible and any terms and conditions for the conversion of such
Securities which differ from Article Fifteen; and
(14) any other terms, conditions and provisions of the series (which terms,
conditions and provisions shall not be inconsistent with the provisions of
this Indenture).
The Securities shall be subordinate and junior in right of payment to
Senior Indebtedness of the Company as provided in Article Fourteen.
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to
such Board Resolution and set forth in such Officers' Certificate, to the extent
applicable, or in any such indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuance of
additional Securities of such series.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Board Resolution or
the Officers' Certificate setting forth the terms of the series.
Section 302. Denominations.
The Securities of each series shall be issuable in registered form without
coupons in such denominations as shall be specified as contemplated by Section
301. In the absence of any such provisions with respect to the Securities of any
series, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Chief Executive Officer, its President or any one of its Vice
Presidents, under its corporate seal which may be in facsimile form and may be
imprinted or otherwise reproduced thereon, and attested by its Secretary or one
of its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
<PAGE>
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, and the Trustee shall authenticate
and deliver such Securities upon Company Order. If all the Securities of any one
series are not to be originally issued at one time and if a Board Resolution
relating to such Securities or supplemental indenture shall so permit, such
Company Order may set forth procedures (acceptable to the Trustee) for the
issuance and authentication of such Securities.
If the form or terms of the Securities of the series have been established
in or pursuant to one or more Board Resolutions as permitted by Sections 201 and
301, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities has been established by or pursuant to
Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or pursuant to
Board Resolution as permitted by Section 301, that such terms have been
established in conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, to general equity principles
and to such other exceptions as are then customary in accordance with
market practices.
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.
<PAGE>
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Board Resolution or Officers'
Certificate otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to this Section 303 at or prior
to the time of authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued and such documents reasonably
contemplate the issuance of all Securities of such series.
Unless otherwise provided in the form of Security for any series, each
Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
If the Company shall establish pursuant to Section 301 that the Securities
of a series are to be issued in the form of one or more Global Securities, then
the Company shall execute and the Trustee shall, in accordance with this Section
and the Company Order with respect to such series, authenticate and deliver one
or more Global Securities that (i) shall represent and shall be denominated in
an amount equal to the aggregate principal amount of all of the Securities of
such series having the same terms issued and not yet cancelled, (ii) shall be
registered in the name of the Depositary for such Global Security or Securities
or the nominee of such Depositary, (iii) shall be delivered by the Trustee to
such Depositary or pursuant to such Depositary's instructions and (iv) shall
bear a legend substantially to the following effect: "Unless and until it is
exchanged in whole or in part for Securities in definitive registered form, this
Security may not be transferred except as a whole by the Depositary to the
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities. Every such temporary Security
shall be executed by the Company and shall be authenticated and delivered by the
Trustee upon the same conditions and in substantially the same manner, and with
the same effect, as the definitive Security in lieu of which it is issued.
<PAGE>
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.
Section 305. Registration, Registration of Transfer and Exchange and Book-Entry
Securities.
The Company shall cause to be kept at one of its offices or agencies
maintained pursuant to Section 1002 a register (the register maintained in such
office being herein sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities. The
Person responsible for the maintenance of the Security Register is referred to
herein as the "Security Registrar." The Trustee is hereby initially appointed
Security Registrar for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series
at the office or agency in a Place of Payment for that series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Securities of any series (except Global
Securities) may be exchanged for other Securities of the same series (except
Global Securities), of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
<PAGE>
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Security Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107, 1305 or 1503 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 that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding any other provision of this Section 305, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Global Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
a series shall no longer be registered or in good standing under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, the Company shall execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, shall authenticate and deliver Securities
of such series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such event
the Company shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, shall
authenticate and deliver, Securities of such series in definitive registered
form without coupons, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such series, in exchange for such Global Security or Securities.
<PAGE>
If specified by the Company pursuant to Section 301 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series in definitive registered form on such terms as are
acceptable to the Company and such Depositary. Thereupon, the Company shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new Security or Securities of
the same series, of any authorized denomination as requested by such
Person, in an aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination equal to the
difference, if any, between the principal amount of the surrendered Global
Security and the aggregate principal amount of Securities authenticated
and delivered pursuant to Clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form, in authorized denominations, such Global Security shall be
cancelled by the Trustee. Securities in definitive registered form issued in
exchange for a Global Security pursuant to this Section 305 shall be registered
in such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall not be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions. The Trustee shall,
at Company expense, deliver such Securities to or as directed by the Persons in
whose names such Securities are so registered.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, together with
such other security or indemnity as may be reasonably required by the Trustee to
save it harmless, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be reasonably 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.
<PAGE>
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security, subject to satisfaction of
the foregoing conditions.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. The Company and the Trustee understand that interest on any
Global Security will be disbursed or credited by the Depositary to the Persons
having ownership thereof pursuant to a book entry or other system maintained by
the Depositary.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or Clause (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be
<PAGE>
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Section 309. Cancellation.
Unless otherwise specified pursuant to Section 301(7) for Securities of
any series, all Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee, except that if a Global Security is so surrendered, the Company shall
execute and the Trustee shall authenticate and deliver to the Depositary for
such Global Security, without service charge, a new Global Security or
Securities in a denomination equal to and in exchange for the portion of the
Global Security so surrendered not to be paid, redeemed, repaid or registered
for transfer or exchange or for credit. No Securities shall be authenticated in
lieu of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of in accordance with its customary procedures
and a certificate of disposition shall be delivered to the Company upon Company
Request.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
The Company in issuing Securities of any series may use a "CUSIP" number
(if then generally in use) with respect to Securities of such series, and, if
so, the Trustee shall use such "CUSIP" number in notices of redemption as a
convenience to Holders of Securities of such series; provided that any such
notice many state that no representation is made as to the correctness of such
number 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 identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such number. The Company will promptly notify
the Trustee of any change in "CUSIP" numbers associated with Securities of any
series.
<PAGE>
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
Upon Company Request, this Indenture shall cease to be of further effect
with respect to the Securities of a particular series (except as to any
surviving rights to convert Securities into Common Stock, or rights of
registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such Securities, when:
(1) either:
(A) all Securities of such series theretofore authenticated and
delivered (other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or
(B) all Securities of such series not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year, under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as trust
funds in trust for the purpose sums sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the
Company for cancellation, for principal (and premium, if any) and interest
to the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the case
may be; and
<PAGE>
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to such Securities; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture with
respect to the Securities of such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to
the Securities of a particular series, the obligations of the Company to the
Trustee under Section 607, the obligations, if any, of the Company to any
Authenticating Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003, in each case with respect to such Securities, shall survive.
Notwithstanding the cessation, termination and discharge of all obligations,
covenants and agreements of the Company under this Indenture with respect to any
series of Securities, the obligations of the Company to the Trustee under
Section 607, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive with respect to such series of
Securities.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee. All money deposited with the Trustee pursuant to Section 401 (and held
by it or any Paying Agent) for the payment of Securities subsequently converted
into Common Stock shall be returned to the Company upon Company Request.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or Article Fourteen or
<PAGE>
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment, whether or not prohibited by the
provisions of Article Fourteen, of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment, whether or not prohibited by the
provisions of Article Fourteen, of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of series of Securities other
than that series), and continuance of such default or breach for a period
of 60 days after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities
of that series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) the happening of an event of default as defined in any mortgage,
indenture or instrument under which there may be issued or by which there
may be secured or evidenced any Debt of the Company or any Restricted
Subsidiary (including an Event of Default under this Indenture with
respect to Securities of any series other than that series), whether now
existing or hereafter created, which event of default shall have resulted
in Debt of the Company or any Restricted Subsidiary becoming or being
declared due and payable prior to the date on which it would otherwise
have become due and payable, if the aggregate principal amount (of, if
applicable, with an issue price plus accrued original issue discount) of
such Debt is in excess of five percent (5%) of the aggregate principal
amount of the Company's Funded Debt then outstanding, unless within 30
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Securities of that
series a written notice specifying such acceleration and requiring it to
be remedied and stating that such notice is a "Notice of Default," such
acceleration has been rescinded or annulled, such Debt has been paid, or
the Company or such Restricted Subsidiary shall
<PAGE>
have contested such acceleration in good faith and by appropriate
proceedings and have obtained thereafter maintained a stay of all
consequences thereof that would have a material adverse effect on the
Company; provided, however, that if, after the expiration of such period,
such event of default shall be remedied or cured by the Company or such
Restricted Subsidiary or be waived by the holders of such Debt in any
manner authorized by such mortgage, indenture or instrument or shall
otherwise cease to exist, then the Event of Default hereunder by reason
thereof shall, without further action by the Company, the Trustee or any
Holder, be deemed cured and not continuing; or
(6) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company or any Restricted
Subsidiary in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law or (B) a decree or order adjudging the Company or any Restricted
Subsidiary a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company or any Restricted Subsidiary under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
the Company or any Restricted Subsidiary or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(7) the commencement by the Company or any Restricted Subsidiary of
a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect of
the Company or any Restricted Subsidiary in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by
it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any Restricted Subsidiary or of any
substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of
corporate action by the Company or any Restricted Subsidiary in
furtherance of any such action; or
<PAGE>
(8) any other Event of Default provided with respect to Securities
of that series.
Upon receipt by the Trustee of any proposed Notice of Default from any
Holder with respect to Securities of a series all or part of which is
represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join in
such proposed Notice of Default, which record date shall be at the close of
business on the day the Trustee receives such proposed Notice of Default. The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such proposed Notice of Default, whether
or not such Holders remain Holders after such record date; provided, that unless
Holders of at least 25% in principal amount of the Outstanding Securities of
such series, or their proxies, shall have joined in such proposed Notice of
Default prior to the day which is 90 days after such record date, such proposed
Notice of Default shall automatically and without further action by any Holder
be cancelled and of no further effect. Nothing in this paragraph shall prevent a
Holder, or a proxy of a Holder, from giving (i) after expiration of such 90-day
period, a new proposed Notice of Default identical to a proposed Notice of
Default which has been cancelled pursuant to the proviso to the preceding
sentence, or (ii) during any such 90-day period, an additional proposed Notice
of Default with respect to any new or different fact or circumstance permitting
the giving of a proposed Notice of Default with respect to Securities of such
series, in either of which events a new record date shall be established
pursuant to the provisions of this Section 501. Any such proposed Notice of
Default shall be considered a Notice of Default hereunder at such time, if any,
that Holders of at least 25% in principal amount of the Outstanding Securities
shall have joined in such proposed Notice of Default by giving timely notice to
the Trustee hereunder.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case, the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. Upon payment of said amounts,
all obligations of the Company in respect of payment of principal of the
Securities of such series shall terminate.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
<PAGE>
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities
of that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or
rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, with respect to Securities of
a series all or part of which is represented by a Global Security, a record date
shall be established for determining Holders of Outstanding Securities of such
series entitled to join in such notice, which record date shall be at the close
of business on the day the Trustee receives such notice. The Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such notice, whether or not such Holders remain Holders
after such record date; provided, that unless such declaration of acceleration,
or rescission and annulment, as the case may be, shall have become effective by
virtue of the requisite percentage having joined in such notice prior to the day
which is 90 days after such record date, such notice of declaration of
acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be cancelled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving, (i) after expiration of such 90-day period, a new written
notice of declaration of acceleration or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been cancelled
pursuant to the proviso to the preceding sentence, or (ii) during any such
90-day period, an additional written notice of declaration of
<PAGE>
acceleration with respect to Securities of such series, or an additional written
notice of rescission and annulment of any declaration of acceleration with
respect to any other Event of Default with respect to Securities of such series,
in either of which events a new record date shall be established pursuant to the
provisions of this Section 502.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for
a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any sinking
fund payment when it becomes due pursuant to the terms of the Securities
of any series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
or rates prescribed therefor in such Securities and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may, but shall not
be obligated to, institute a judicial proceeding for the collection of the sums
so due and unpaid, may prosecute such proceeding to judgment or final decree,
and may enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
<PAGE>
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to file and prove a claim for the
whole amount of principal, premium (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 claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements, and advances of
the Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article with respect
to one or more series of Securities shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities of any such series and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
<PAGE>
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 Company or to whomsoever may be
lawfully entitled to receive the same as a court of competent jurisdiction
may direct.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to a Responsible
Officer of the Trustee of a continuing Event of Default with respect to
the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
against the costs, expenses and liabilities to be incurred in compliance
with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or of the Holders of Outstanding Securities of any other series,
or to obtain or to seek to obtain priority or preference over any
<PAGE>
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption or repayment at the option of the
Holder, on the Redemption Date or the Repayment Date, as the case may be) and
(if the terms of such Security so provide) to have such Security converted into
Common Stock pursuant to Article Fifteen and to institute suit for the
enforcement of any such payment or conversion, and such rights shall not be
impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right 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.
<PAGE>
Section 512. Control by Holders.
The Holders of at least a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, expose the Trustee to personal liability or be unduly
prejudicial to Holders not joining therein, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Upon receipt by the Trustee of any such direction with respect to
Securities of a series all or part of which is represented by a Global Security,
a record date shall be established for determining Holders of Outstanding
Securities of such series entitled to join in such direction, which record date
shall be determined in accordance with Section 104(e). The Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such direction, whether or not such Holders remain Holders
after such record date; provided, that unless Holders of at least a majority in
principal amount of the outstanding Securities of such series, or their proxies,
shall have been joined in such direction prior to the day which is 90 days after
such record date, such direction shall automatically and without further action
by any Holder be cancelled and of no further effect. Nothing in this paragraph
shall prevent a Holder, or a proxy of a Holder, from giving, (i) after
expiration of such 90-day period, a new direction identical to a direction which
has been cancelled pursuant to the provisions to the preceding sentence or (ii)
during any such 90-day period a new direction contrary to or different from such
direction, in either of which events a new record date shall be established
pursuant to the provisions of this Section 512.
Section 513. Waiver of Past Defaults.
By Act delivered to the Company and the Trustee, the Holders of not less
than a majority in principal amount of the Outstanding Securities of any
affected series may on behalf of the Holders of all the Securities of such
series waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series or in the payment of any sinking
fund installment with respect to the Securities of such series, or
<PAGE>
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to waive any past default hereunder.
If a record date is fixed, the Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to waive any
default hereunder, whether or not such Holders remain Holders after such record
date; provided, that unless such majority in principal amount shall have been
obtained prior to the date which is 90 days after such record date, any such
waiver previously given shall automatically and without further action by any
Holder be cancelled and of no further effect.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs,
including attorney's fees and expenses, against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Trustee, by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or by any Holder for the enforcement of the payment of the principal
of (or premium, if any) or interest on any Security on or after the Stated
Maturity expressed in such Security (or, in the case of redemption or repayment
at the option of the Holder, on or after the Redemption Date or Repayment Date,
as the case may be, and (if the terms of such Security so provide) to have such
Security converted into Common Stock pursuant to Article Fifteen).
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
<PAGE>
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any provision of
this Indenture are specifically required to be furnished to the Trustee,
the Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any
<PAGE>
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; 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 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 actually known by a
Responsible Officer of the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal, premium (if any) or interest on any Security of such series or
in the payment of any sinking fund installment with respect to the Securities of
such series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee of the board of
directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interests of the Holders of the
Securities of such series; and provided, further, that in the case of any
default of the character specified in Section 501(4) with respect to the
Securities of such series, no such notice to Holders shall be given until at
least 60 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
<PAGE>
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
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 security or indemnity reasonably
satisfactory to it against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney, at the sole
cost of the Company, and shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation;
(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;
(h) the Trustee shall not be required to take notice or be deemed to
have notice of any default hereunder (except failure by the Company to pay
principal of, premium (if any) on or interest on any series of Securities
so long as the Trustee is also acting as Paying Agent for such series of
Securities) unless
<PAGE>
the Trustee shall be specifically notified in writing of such default by
the Company or by the Holders of at least 10% in aggregate principal
amount of all Outstanding Securities of a series, and all such notices or
other instruments required by this Indenture to be delivered to the
Trustee must, in order to be effective, be delivered at the principal
Corporate Trust Office of the Trustee, and in the absence of such notice
the Trustee may conclusively assume there is no default except as
aforesaid;
(i) the Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture; and
(j) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and to each agent, custodian and other
Person employed by the Trustee to act on its behalf 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 or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof. The Trustee shall not be deemed
to have knowledge of the identity of any Restricted Subsidiary unless either (A)
a Responsible Officer of the Trustee shall have actual knowledge thereof or (B)
the Trustee shall have received written notice thereof from the Company or any
Holder.
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.
<PAGE>
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 in writing with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as
shall be agreed to in writing between the Company and the Trustee 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 each of the Trustee and any predecessor Trustee
for, and to hold each of them harmless against, any and all loss,
liability, damage, claims or expense, including taxes (other than taxes
based on the income of the Trustee) 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 (whether asserted by the
Company, any Holder or any other Person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
<PAGE>
The provisions of this Section shall survive the termination of this
Indenture.
Section 608. Disqualification; Conflicting Interests.
The Trustee for the Securities of any series shall be subject to the
provisions of Section 310(b) of the Trust Indenture Act during the period of
time provided for therein. If the Trustee has or shall acquire a conflicting
interest within the meaning of Section 310 of the Trust Indenture Act, the
Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act
and this Indenture. To the extent permitted by the Trust Indenture Act, the
Trustee shall not be deemed to have a conflicting interest with respect to the
Securities of any series by virtue of being Trustee with respect to the
Securities of any particular series of Securities other than that series.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the expense of the
Company, 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. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of removal, the Trustee being removed may petition, at
<PAGE>
the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed 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 an Officers' Certificate may remove
the Trustee with respect to any or all Securities, or (ii) subject to Section
514, any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to
any or all Securities and the appointment of a successor Trustee or Trustees
with respect to such series.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of that or those series shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the successor
Trustee with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for
<PAGE>
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each notice
of appointment shall include the name of the successor Trustee with respect to
the Securities of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder, subject nevertheless to its
lien, if any, provided for in Section 607.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided
<PAGE>
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. In case
any Securities shall not have been authenticated by such predecessor Trustee,
any such successor Trustee may authenticate and deliver such Securities, either
in its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of Section 311 of the Trust Indenture Act regarding the collection of
such claims against the Company (or any such other obligor). A Trustee that has
resigned or been removed shall be subject to and comply with said Section 311 to
the extent required thereby.
<PAGE>
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities (which may be an Affiliate of the Company)
which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon registration of transfer or partial redemption or
repayment thereof or pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business and in good standing under the
laws of the United States of America, any State or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of no less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may resign at any
time by giving written notice thereof to the Trustee for such series and to the
Company. The Trustee for any series of Securities may at any time terminate the
agency of an Authenticating Agent for such series by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee of such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment thereunder
shall become
<PAGE>
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 Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series described therein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By__________________________________________
As Authenticating Agent
By__________________________________________
As Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will furnish or
cause to be furnished to the Trustee for the Securities of such Series
(a) semiannually, not more than 15 days after each Regular Record
Date relating to that series (or, if there is no Regular Record Date
relating to that series, on June 30 and December 31), a list, in such form
as such Trustee may reasonably require, of the names and addresses of the
Holders of that series as of such date, and
<PAGE>
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished;
provided, however, that if and so long as the Trustee is Security Registrar with
respect to Securities of a particular series no such list shall be required with
respect to the Securities of such series.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of the
disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the May 15
following the first date on which a Security is authenticated by the Trustee
under this Indenture, the Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act if and to the extent and in the manner
provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when any Securities are listed on any stock
exchange and of any delisting thereof.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit
to Holders, such information, documents and other reports, and such summaries
thereof, as may be required
<PAGE>
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Act; provided that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, shall be filed with the Trustee
within 15 days after the same are so required to be filed with the Commission.
Delivery of such reports to the Trustee is for informational purposes only and
the Trustee's receipt of such reports shall not constitute constructive notice
of any information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
Section 705. Holders' Meetings.
(a) A meeting of Holders of any or all series of Securities may be called
at any time and from time to time pursuant to the provisions of this Section 705
for any of the following purposes:
(1) to give any notice to the Company or to the Trustee for such
series, or to give any directions to the Trustee for such series, or to
consent to the waiving of any default hereunder and its consequences, or
to take any other action authorized to be taken by Holders pursuant to any
of the provisions of Article Five;
(2) to remove the Trustee for such series and appoint a successor
Trustee pursuant to the provisions of Article Six;
(3) to consent to the execution of an indenture or supplemental
indentures hereto pursuant to the provisions of Section 902;
(4) to take any other action authorized to be taken by or on behalf
of the Holders of any specified aggregate principal amount of the
Outstanding Securities of any one or more or all series, as the case may
be, under any other provision of this Indenture or under applicable law.
(b) The Trustee for any series may at any time call a meeting of Holders
of such series to take any action specified in paragraph (a) of this Section
705, to be held at such time or times and at such place or places as the Trustee
for such series shall determine. Notice of every meeting of the Holders of any
series of Securities, setting forth the time and the place of such meeting and
in general terms the action proposed to be taken at such meeting, shall be given
to Holders of such series in the manner and to the extent provided in Section
105. Such notice shall be given not less than 20 days nor more than 90 days
prior to the date fixed for the meeting.
(c) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in aggregate principal amount of the Outstanding
Securities of a series or of all
<PAGE>
series, as the case may be, shall have requested the Trustee for such series to
call a meeting of Holders of any or all such series by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have given the notice of such meeting within 20 days after
the receipt of such request, then the Company or such Holders may determine the
time or times and the place or places for such meetings and may call such
meetings to take any action authorized by giving notice thereof as provided in
the preceding paragraph.
(d) To be entitled to vote at any meeting of Holders, a Person shall be
(i) a Holder of a Security of the series with respect to which such meeting is
being held, or (ii) a Person appointed by an instrument in writing as proxy of
such Holder. The only Persons who shall be entitled to be present or to speak at
any meeting of Holders shall be the Persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee for the series with respect
to which such meeting is being held and its counsel and any representatives of
the Company and its counsel.
(e) Notwithstanding any other provisions of this Indenture, the Trustee
for any series may make such reasonable regulations as it may deem advisable for
any meeting of Holders of such series, in regard to proof of the holding of
Securities of such series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of such series as provided in paragraph (c) of this
Section 705, in which case the Company or the Holders calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by a majority
vote of the meeting.
Subject to the provisos in the definition of "Outstanding," at any meeting
each Holder of a Security of the series with respect to which such meeting is
being held or proxy therefor shall be entitled to one vote for each $1,000
principal amount (or such other amount as shall be specified as contemplated by
Section 301) of Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote
other than by virtue of Outstanding Securities of such series held by him or
instruments in writing duly designating him as proxy for one or more Holders of
Securities of such series. Any meeting of Holders with respect to which a
meeting was duly called pursuant to the provisions of paragraph (b) or (c) of
this Section 705 may be adjourned from time to time by a majority of such
Holders present and the meeting may be reconvened following such adjournment
without further notice.
<PAGE>
(f) The vote upon any resolution submitted to any meeting of Holders with
respect to which such meeting is being held shall be by written ballots on which
shall be subscribed the signatures of such Holders or of their representatives
by proxy and the serial number or numbers of the Securities held or represented
by them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A record
in duplicate of the proceedings of each meeting of Holders shall be prepared by
the secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
transmitted as provided in paragraph (b) of this Section 705. The record shall
show the serial numbers of the Securities voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by the
Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
(g) Nothing contained in this Section 705 shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to any Holder under any of the provisions of this Indenture or of the
Securities of any series.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation,
partnership or trust, shall be organized and validly existing under the
laws of the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee the due and punctual payment of the
principal of and any premium and interest on all the Securities and the
<PAGE>
performance or observance of every covenant of this Indenture on the part
of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, 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 Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture, comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities. In the case of a lease, the predecessor
Person shall not be released from its obligations to pay the principal of,
premium, if any, and interest on the Securities. All Securities issued by the
successor Person shall in all respects have the same legal priority as the
Securities theretofore or thereafter authenticated, issued and delivered in
accordance with the terms of this Indenture.
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
<PAGE>
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating
that such Events of Default are expressly being included solely for the
benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that
any such addition, change or elimination (a) shall neither (i) apply to
any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor
(ii) modify the rights of the Holder of any such Security with respect to
such provision or (b) shall become effective only when there is no such
Security Outstanding; 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
(8) to add to or change any provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities convertible into other securities; or
(9) to effectuate the provisions of Section 1505(b); or
(10) to add or change or eliminate any provisions of this Indenture
as shall be necessary or desirable in accordance with any amendments to
the Trust Indenture Act; or
<PAGE>
(11) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action pursuant
to this clause (11) shall not adversely affect the interests of the
Holders of Securities of any series in any material respect; or
(12) to change any place or places where (a) the principal of and
premium, if any, and interest, if any, on all or any series of Securities
shall be payable, (b) all or any series of Securities may be surrendered
for registration or transfer, (c) all or any series of Securities may be
surrendered for registration or transfer, (c) all or any series of
Securities may be surrendered for exchange and (d) notices and demands to
or upon the Company in respect of all or any series of securities and this
Indenture may be served.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of, premium, if any, or interest on, any
Security, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, change the
method of determination of interest thereon, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or adversely affect any right of repayment at the
option of the Holder of any Security, or change the coin or currency in
which any Security or any premium or the interest thereon is payable or
impair the right of any Holders of Securities of a series entitled to the
conversion rights set forth in Article Fifteen to receive securities upon
the exercise of such conversion rights, or impair the right to institute
suit for the enforcement of any such payment or delivery of Common Stock
for Securities converted pursuant to Article Fifteen on or after the
Stated Maturity thereof (or, in the case of redemption or repayment at the
option of the Holder, on or after the Redemption Date or Repayment Date,
as the case may be, or in the case of such conversion, on or after the
date of conversion), or
<PAGE>
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1007, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1007, 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 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 Indenture.
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
Officers' Certificate and Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
<PAGE>
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Section 907. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the appropriate Trustee of
any supplemental indenture, the Company transmit, as provided herein, to all
Holders of any series of Securities affected thereby, a notice setting forth in
general terms the substance of such supplemental indenture.
Section 908. Subordination Unimpaired.
No supplemental indenture executed pursuant to this Article shall directly
or indirectly modify the provisions of Article Fourteen in any manner which
might alter the subordination of the Securities.
<PAGE>
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer, conversion or exchange and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company terminates the appointment of a Paying Agent
or Security Registrar or conversion agent or otherwise shall fail to maintain
any such required office or agency, the Company shall use its reasonable best
efforts to appoint a successor Paying Agent or Security Registrar or conversion
agent reasonably acceptable to the Trustee. If the Company fails to maintain a
Paying Agent or Security Registrar or conversion agent, the Trustee will act as
such, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each Place of
Payment for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee in writing
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of (and premium,
if any) or interest
<PAGE>
on any Securities of that series, deposit with a Paying Agent a sum sufficient
to pay the principal (and premium, if any) or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee in writing of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default by the Company
(or any other obligor upon the Securities of that series) in the making of
any payment of principal (and premium, if any) or interest on the
Securities of that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security of any series and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper in
the Borough of Manhattan, The City of New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days
<PAGE>
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
Section 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if, in the judgment of the Company, it shall no longer be necessary, advisable
or in the interest of the Company to preserve the same.
Section 1005. Statement by Officers as to Default.
Pursuant to Section 314(a) of the Trust Indenture Act, the Company will
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company ending after the date hereof, a certificate signed by the principal
executive, financial or accounting officer of the Company, stating whether or
not to the best knowledge of the signer thereof the Company is in default in the
performance and observance of any of the terms, provisions, covenants and
conditions of this Indenture (without regard to any period of grace or
requirement of notice provided, hereunder) and, if the Company shall be in
default, specifying all such defaults and the nature and status thereof of which
they may have knowledge.
Section 1006. Usury Laws.
The Company will not voluntarily claim, and will actively resist any
attempts to claim, the benefit of any usury laws against any holder of the
Securities of any series.
Section 1007. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 1004 with respect to the Securities
of any series if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities of such series shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
Section 1008. Calculation of Original Issue Discount.
If, at the end of any calendar, year there are Original Issue Discount
Securities then Outstanding, then within 60 days after the end of such calendar
year the Company shall file with
<PAGE>
the Trustee (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on such Securities
as of the end of such year, and (ii) such other specific information relating to
such original issue discount as may then be relevant under the Internal Revenue
Code, as amended from time to time.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated in Section 301 for Securities of any series) in
accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. The Company shall, at least 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor of the
Securities to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, in a manner
which the Trustee deems fair and appropriate, which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If the
Company shall so specify and identify the appropriate Securities, Securities
owned of record and beneficially by the Company or any Subsidiary shall not be
included in the Securities selected for redemption.
<PAGE>
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall, unless otherwise specified by the terms of the
Securities to be redeemed, be given not less than 30 nor more than 60 days prior
to the Redemption Date, to each Holder of Securities to be redeemed, in
accordance with Section 106.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Securities of such series are being redeemed by the Company
pursuant to provisions contained in this Indenture or the terms of the
Securities of such series or a supplemental indenture establishing such
series, if such be the case, together with a brief statement of facts
permitting such redemption,
(4) if less than all the Outstanding Securities of any series are to
be redeemed (unless all the Securities of such series of a specified tenor
are to be redeemed), the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, which shall be the office or agency
of the Company in each Place of Payment, and
(7) that the redemption is for a sinking fund, if such is the case.
<PAGE>
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.
<PAGE>
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest or, if applicable, be
convertible. Upon surrender of any such Security for redemption in accordance
with said notice, such Security shall be paid by the Company at the Redemption
Price, together with accrued interest to the Redemption Date; provided, however,
that, unless otherwise specified as contemplated by Section 301, installments of
interest whose Stated Maturity is on or prior to the Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security, and such Security shall continue to have any conversion rights then
applicable.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered. If a Global Security is so surrendered, such new
Security so issued shall be a new Global Security.
<PAGE>
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and the basis for such credit and will also deliver to
the Trustee any Securities to be so delivered which have not theretofore been
delivered to the Trustee. Not less than 30 days before each such sinking fund
payment date, the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the
<PAGE>
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT OF SECURITIES AT OPTION OF HOLDERS
Section 1301. Applicability of Article.
Securities of any series that are repayable before their Stated Maturity
at the option of the Holders shall be repaid in accordance with their terms and
(except as otherwise specified as contemplated by Section 301 for Securities of
any series) in accordance with this Article.
Section 1302. Notice of Repayment Date.
Notice of any Repayment Date with respect to Securities of any series
shall, unless otherwise specified by the terms of the Securities of such series,
be given by the Company not less than 45 nor more than 60 days prior to such
Repayment Date, to the Trustee and to each Holder of Securities of such series
in accordance with Sections 105 and 106, respectively.
The notice as to Repayment Date shall state:
(1) the Repayment Date;
(2) the Repayment Price;
(3) the place or places where such Securities are to be surrendered
for payment of the Repayment Price, which shall be the office or agency of
the Company in each Place of Payment, and the date by which Securities
must be so surrendered in order to be repaid;
(4) a description of the procedure which a Holder must follow to
exercise a repayment right; and
(5) that exercise of the option to elect repayment is irrevocable.
No failure of the Company to give the foregoing notice shall limit any
Holder's right to exercise a repayment right.
<PAGE>
Section 1303. Deposit of Repayment Price.
Prior to any Repayment Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Repayment Price of and (except if the Repayment Date shall
be an Interest Payment Date) accrued interest on, all the Securities of such
series which are to be repaid on that date.
Section 1304. Securities Payable on Repayment Date.
The form of option to elect repayment having been delivered as specified
in the form of Security for such series as provided in Section 201, the
Securities so to be repaid shall, on the Repayment Date, become due and payable
at the Repayment Price applicable thereto, and from and after such date (unless
the Company shall default in the payment of the Repayment Price and accrued
interest) such Securities shall cease to bear interest or, if applicable, be
convertible. Upon surrender of any such Security for repayment in accordance
with said notice, such Security shall be paid by the Company at the Repayment
Price, together with accrued interest to the Repayment Date; provided, however,
that, unless otherwise specified as contemplated by Section 301, installments of
interest whose Stated Maturity is on or prior to such Repayment Date will be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Date according to their terms and the provisions of Section 307.
If any Security to be repaid shall not be so paid upon surrender thereof
for repayment, the principal shall, until paid, bear interest from the Repayment
Date at the rate prescribed in the Security and such Security shall continue to
have any conversion rights then applicable.
Section 1305. Securities Repaid in Part.
Any Security which by its terms may be repaid in part at the option of the
Holder and which is to be repaid only in part shall be surrendered at any office
or agency of the Company designated for that purpose pursuant to Section 1002
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge, a new Security
or Securities of the same series and of like tenor, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unrepaid portion of the principal of the Security so
surrendered. If a Global Security is so surrendered, such new Security so issued
shall be a new Global Security.
<PAGE>
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
Section 1401. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees that anything in this Indenture or the
Securities of any series to the contrary notwithstanding, the indebtedness
evidenced by the Securities of each series is subordinate and junior in right of
payment to all Senior Indebtedness to the extent provided herein, and each
Holder of Securities of each series, by his acceptance thereof, likewise
covenants and agrees to the subordination herein provided and shall be bound by
the provisions hereof. Senior Indebtedness shall continue to be Senior
Indebtedness and entitled to the benefits of these subordination provisions
irrespective of any amendment, modification or waiver of any term of the Senior
Indebtedness or extension or renewal of the Senior Indebtedness.
In the event that the Company shall default in the payment of any
principal of (or premium, if any) or interest on any Senior Indebtedness when
the same becomes due and payable, whether at maturity or at a date fixed for
repayment or by declaration of acceleration or otherwise, then, upon written
notice of such default to the Company by the holders of Senior Indebtedness or
any trustee therefor or representative thereof, unless and until such default
shall have been cured or waived or shall have ceased to exist, no direct or
indirect payment (in cash, property, securities, by set-off or otherwise) shall
be made or agreed to be made on account of the principal of (or premium, if any)
or interest on any of the Securities, or in respect of any redemption,
retirement, purchase or other acquisition of any of the Securities.
In the event of
(a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding
relating to the Company, its creditors or its property,
(b) any proceeding for the liquidation, dissolution or other winding
up of the Company, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings,
(c) any assignment by the Company for the benefit of creditors, or
(d) any other marshalling of the assets of the Company,
all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall be
made to any Holder of any of the Securities on account thereof. Any payment or
distribution, whether in cash, securities or other property (other than
securities of the Company or any other corporation provided for by a plan of
reorganization or
<PAGE>
readjustment the payment of which is subordinate, at least to the extent
provided in these subordination provisions with respect to the indebtedness
evidenced by the Securities, to the payment of all Senior Indebtedness at the
time outstanding and to any securities issued in respect thereof under any such
plan of reorganization or readjustment), which would otherwise (but for these
subordination provisions) be payable or deliverable in respect of the Securities
of any series shall be paid or delivered directly to the holders of Senior
Indebtedness in accordance with the priorities then existing among such holders
until all Senior Indebtedness (including any interest thereof accruing after the
commencement of any such proceedings) shall have been paid in full. In the event
of any such proceeding, after payment in full of all sums owing with respect to
Senior Indebtedness, the Holders of the Securities, together with the holders of
any obligations of the Company ranking on a parity with the Securities, shall be
entitled to be paid from the remaining assets of the Company the amounts at the
time due and owing on account of unpaid principal of (and premium, if any) and
interest on the Securities and such other obligations before any payment or
other distribution, whether in cash, property or otherwise, shall be made on
account of any Capital Stock or any obligations of the Company ranking junior to
the Securities and such other obligations.
In the event that, notwithstanding the foregoing, any payment or
distribution of any character, whether in cash, securities or other property
(other than securities of the Company or any other corporation provided for by a
plan of reorganization or readjustment the payment of which is subordinate, at
least to the extent provided in these subordination provisions with respect to
the indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), or any security
shall be received by the Trustee or any Holder in contravention of any of the
terms hereof, such payment or distribution or security shall be received in
trust for the benefit of, and shall be paid over or delivered and transferred
to, the holders of the Senior Indebtedness at the time outstanding in accordance
with the priorities then existing among such holders for application to the
payment of all Senior Indebtedness remaining unpaid, to the extent necessary to
pay all such Senior Indebtedness in full. In the event of the failure of the
Trustee or any Holder to endorse or assign any such payment, distribution or
security, each holder of Senior Indebtedness is hereby irrevocably authorized to
endorse or assign the same.
No present or future holder of any Senior Indebtedness shall be prejudiced
in the right to enforce subordination of the indebtedness evidenced by the
Securities by any act or failure to act on the part of the Company. Nothing
contained herein shall impair, as between the Company and the Holders of
Securities of each series, the obligation of the Company to pay to such Holders
the principal of (and premium, if any) and interest on such Securities or
prevent the Trustee or the Holder from exercising all rights, powers and
remedies otherwise permitted by applicable law or hereunder upon a Default or
Event of Default hereunder, all subject to the rights of the holders of the
Senior Indebtedness to receive cash, securities or other property otherwise
payable or deliverable to the Holders.
<PAGE>
Senior Indebtedness shall not be deemed to have been paid in full unless
the holders thereof shall have received cash, securities or other property equal
to the amount of such Senior Indebtedness then outstanding. Upon the payment in
full of all Senior Indebtedness, the Holders of Securities of each series shall
be subrogated to all rights of any holders of Senior Indebtedness to receive any
further payments or distributions applicable to the Senior Indebtedness until
the indebtedness evidenced by the Securities of such series shall have been paid
in full, and such payments or distributions received by such Holders, by reason
of such subrogation, of cash, securities or other property which otherwise would
be paid or distributed to the holders of Senior Indebtedness, shall, as between
the Company and its creditors other than the holders of Senior Indebtedness, on
the one hand, and such Holders, on the other hand, be deemed to be a payment by
the Company on account of Senior Indebtedness, and not on account of the
Securities of such series.
The provisions of this Section 1401 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Company in respect
of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
The securing of any obligations of the Company, otherwise ranking on a
parity with the Securities or ranking junior to the Securities, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to the Securities.
Section 1402. Trustee and Holders of Securities May Rely on Certificate of
Liquidating Agent; Trustee May Require Further Evidence as to
Ownership of Senior Indebtedness; Trustee Not Fiduciary to Holders
of Senior Indebtedness.
Upon any payment or distribution of assets of the Company referred to in
this Article Fourteen, the Trustee and the Holders shall be entitled to rely
upon an order or decree made by any court of competent jurisdiction in which
such dissolution or winding up or liquidation or reorganization or arrangement
proceedings are pending or upon a certificate of the trustee in bankruptcy,
receiver, assignee for the benefit of creditors or other Person making such
payment or distribution, delivered to the Trustee or to the Holders, 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
Fourteen. In the absence of any such bankruptcy trustee, receiver, assignee or
other Person, the Trustee shall be entitled to rely upon a written notice by a
Person representing himself to be a holder of Senior Indebtedness (or a trustee
or representative on behalf of such holder) as evidence that such Person is a
holder of such Senior Indebtedness (or is such a trustee or representative). In
the event that the Trustee determines, in good faith, that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payments or distributions pursuant to this
Article Fourteen, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of
<PAGE>
Senior Indebtedness held by such Person, as to the extent to which such Person
is entitled to participate in such payment or distribution, and as to other
facts pertinent to the rights of such Person under this Article Fourteen, 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. With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and, subject to the
provisions of Section 601, the Trustee shall not be liable to any holder of
Senior Indebtedness if it shall in good faith pay over or deliver to Holders of
Securities, the Company or any other Person moneys or assets to which any holder
of Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
Section 1403. Payment Permitted If No Default.
Nothing contained in this Article Fourteen or elsewhere in this Indenture,
or in any of the Securities, shall prevent (a) the Company at any time, except
during the pendency of any dissolution, winding up, liquidation or
reorganization proceedings referred to in, or under the conditions described in,
Section 1401, from making payments of the principal of (or premium, if any) or
interest on the Securities, or (b) the application by the Trustee or any Paying
Agent of any moneys deposited with it hereunder to payments of the principal of
(or premium, if any) or interest on the Securities if the Trustee or such Paying
Agent, as the case may be, did not have the written notice provided for in
Section 1404 by the times referred to therein of any event prohibiting the
making of such deposit or exchange, and the Trustee or any Paying Agent shall
not be affected by any notice to the contrary received by it on or after such
times.
Section 1404. Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article Fourteen or elsewhere in this Indenture contained
to the contrary notwithstanding, the Trustee shall not at any time be charged
with knowledge of the existence of any facts which would prohibit the making of
any payment of money to or by the Trustee and shall be entitled conclusively to
assume that no such facts exist and that no event specified in Section 1401 has
happened, until the Trustee shall have received an Officers' Certificate to that
effect or notice in writing to that effect signed by or on behalf of the holder
or holders, or their representatives, of Senior Indebtedness who shall have been
certified by the Company or otherwise established to the reasonable satisfaction
of the Trustee to be such holder or holders or representatives or from any
trustee under any indenture pursuant to which such Senior Indebtedness shall be
outstanding; provided, however, that, if prior to the third Business Day
preceding the date upon which by the terms hereof any money becomes payable
(including, without limitation, the payment of either the principal of or
interest on any Security), or in the event of the execution of an instrument
pursuant to Section 401 acknowledging satisfaction and discharge of this
Indenture, then if prior to the second Business Day preceding the date of such
<PAGE>
execution, the Trustee or any Paying Agent shall not have received with respect
to such money the Officers' Certificate or notice provided for in this Section
1404, then, anything herein contained to the contrary notwithstanding, the
Trustee or such Paying Agent shall have full power and authority to receive such
money and apply the same to the purpose for which they were received and shall
not be affected by the notice to the contrary which may be received by it on or
after such date. The Company shall give prompt written notice to the Trustee and
to the Paying Agent of any facts which would prohibit the payment of money to or
by the Trustee or any Paying Agent.
Section 1405. Trustee to Effectuate Subordination.
Each Holder of Securities by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination as between such Holder and holders of Senior
Indebtedness as provided in this Article and appoints the Trustee its
attorney-in-fact for any and all such purposes.
Section 1406. Rights of Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all the rights set forth in this Article
with respect to any Senior Indebtedness which may at the time be held by it, to
the same extent as any other holder of Senior Indebtedness; provided, however,
that nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder; and provided, further, that nothing in this Article shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 607.
Section 1407. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context 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 the Paying Agent were named
in this Article in addition to or in place of the Trustee; provided, however,
that Sections 1404 and 1406 shall not apply to the Company or any Affiliate of
the Company if the Company or such Affiliate acts as Paying Agent.
Section 1408. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Indebtedness.
No right of any present or future holders 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 which any such holder may have or
be otherwise charged with. The holders of Senior Indebtedness may, at any time
or
<PAGE>
from time to time and in their absolute discretion, change the manner, place or
terms of payment, change or extend the time of payment of, or renew or alter,
any such Senior Indebtedness, or amend or supplement any instrument pursuant to
which any such Senior Indebtedness is issued or by which it may be secured, or
release any security therefor, or exercise or refrain from exercising any other
of their rights under the Senior Indebtedness, including, without limitation,
the waiver of default thereunder, all without notice to or assent from the
Holders of the Securities or the Trustee and without affecting the obligations
of the Company, the Trustee or the Holders of the Securities under this Article.
ARTICLE FIFTEEN
CONVERSION OF SECURITIES
Section 1501. General.
If so provided in the terms of the Securities of any series established in
accordance with Section 301, the principal amount of the Securities of such
series shall be convertible into shares of Common Stock in accordance with this
Article Fifteen and the terms of such series of Securities if such terms differ
from this Article Fifteen; provided, however, that if any of the terms by which
any such Security shall be convertible into Common Stock are set forth in a
supplemental indenture entered into with respect thereto pursuant to Section
901(8) hereof, the terms of such supplemental indenture shall govern.
Section 1502. Right to Convert.
Subject to and upon compliance with the provisions of this Article, the
Holder of any Security that is convertible into Common Stock shall have the
right, at such Holder's option, at any time on or after the date of original
issue of such Security or such other date specified in the applicable Board
Resolution delivered pursuant to Section 301 and prior to the close of business
on the date set forth in such Board Resolution (or if such Security is called
for redemption, then in respect of such Security to and including but not after
the close of business on the date of redemption unless the Company shall default
in the payment due on such date) to convert the principal amount of any such
Security of any authorized denomination, or, in the case of any Security to be
converted of a denomination greater than the minimum denomination for Securities
of the applicable series, any portion of such principal which is an authorized
denomination or an integral multiple thereof, into that number of fully paid and
nonassessable shares of Common Stock obtained by dividing the principal amount
of such Security or portion thereof surrendered for conversion by the Conversion
Price therefor by surrender of the Security so to be converted in whole or in
part in the manner provided in Section 1503. Such conversion shall be effected
by the Company in accordance with the provisions of this Article and the terms
of the Securities, if such terms differ from this Article.
<PAGE>
Section 1503. Manner of Exercise of Conversion Privilege; Delivery of Common
Stock; No Adjustment for Interest or Dividends.
In order to effect a conversion, the holder of any Security to be
converted, in whole or in part, shall surrender such Security at the office or
agency maintained by the Company for such purpose, as provided in Section 1002
and shall give written notice of conversion to the Company at such office or
agency that the Holder elects to convert such Security or the portion thereof
specified in said notice. The notice shall state the name or names (with
address), and taxpayer identification number, in which the certificate or
certificates for shares of Common Stock which shall be deliverable on such
conversion shall be registered, and shall be accompanied by payments in respect
of transfer taxes, if required pursuant to Section 1506. Each Security
surrendered for conversion shall, unless the shares of Common Stock deliverable
on conversion are to be issued in the same name as the registration of such
Security, be duly endorsed by or be accompanied by instruments of transfer, in
form satisfactory to the Company, duly executed by the Holder or such Holder's
duly authorized attorney, and by any payment required pursuant to this Section
1503. As promptly as practicable after the surrender of such Security and
notice, as aforesaid, the Company shall deliver or cause to be delivered at such
office or agency to such Holder, or on such Holder's written order, a
certificate or certificates for the number of full shares of Common Stock
deliverable upon the conversion of such Security or portion thereof in
accordance with the provisions of this Article and a check or cash in respect of
any fractional interest in respect of a share of Common Stock arising upon such
conversion as provided in Section 1504. In case any Security of a denomination
greater than the minimum denomination for Securities of the applicable series
shall be surrendered for partial conversion, the Company shall execute and
register and the Trustee shall authenticate and deliver to or upon the written
order of the Company and the Holder of the Security so surrendered, without
charge to such Holder, a new Security or Securities of the same series in
authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Security. Each conversion shall be deemed
to have been effected as of the date on which such Security shall have been
surrendered (accompanied by the funds, if any, required by the last paragraph of
this Section) and such notice received by the Company, as aforesaid, and the
person or persons in whose name or names any certificate or certificates for
shares of Common Stock shall be registrable upon such conversion shall become on
said date the Holder of record of the shares represented thereby, provided,
however, that any such surrender on any date when the stock transfer books of
the Company shall be closed shall constitute the person in whose name the
certificates are to be registered as the record holder thereof for all purposes
on the next succeeding day on which such stock transfer books are open, but such
conversion shall be at the Conversion Price in effect on the date upon which
such Security shall have been so surrendered.
Any Security or portion thereof surrendered for conversion during the
period from the close of business on the Regular Record Date for any Interest
Payment Date to the opening of business on such Interest Payment Date shall
(unless such Security or portion thereof being converted shall have been called
for redemption or submitted for repayment on a date during such period) be
accompanied by payment, in legal tender or other funds acceptable to the
<PAGE>
Company, of an amount equal to the interest otherwise payable on such Interest
Payment Date on the principal amount being converted; provided, however, that no
such payment need be made if there shall exist at the time of conversion a
default in the payment of interest on the applicable series of Securities. An
amount equal to such payment shall be paid by the Company on such Interest
Payment Date to the Holder of such Security on such Regular Record Date;
provided, however, that if the Company shall default in the payment of interest
on such Interest Payment Date, such amount shall be paid to the Person who made
such required payment. Except as provided above in this Section, no adjustment
shall be made for interest accrued on any Security converted or for dividends on
any shares issued upon the conversion of such Security as provided in this
Article.
Section 1504. Cash Payments in Lieu of Fractional Shares.
No fractional shares of Common Stock or scrip representing fractional
shares of Common Stock shall be delivered upon conversion of Securities. If more
than one Security shall be surrendered for conversion at one time by the same
Holder, the number of full shares of Common Stock which shall be deliverable
upon conversion shall be computed on the basis of the aggregate principal amount
of the Securities (or specified portions thereof to the extent permitted hereby)
so surrendered. Instead of any fraction of a share of Common Stock which would
otherwise be deliverable upon the conversion of any Security, the Company shall
pay to the Holder of such Security an amount in cash (computed to the nearest
cent, with one-half cent being rounded upward) equal to the same fraction of the
closing price (determined in the manner provided in Section 1505(a)(v)) of the
Common Stock on the Trading Day (as defined in Section 1505(a)(v)) next
preceding the date of conversion.
Section 1505. Conversion Price Adjustments; Effect of Reclassification,
Mergers, Consolidations and Sales of Assets.
(a) The Conversion Price shall be adjusted from time to time as follows:
(i) In case the Company shall (x) pay a dividend or make a
distribution on the Common Stock in shares of Common Stock, (y) subdivide
the outstanding Common Stock into a greater number of shares or (z)
combine the outstanding Common Stock into a smaller number of shares, the
Conversion Price shall be adjusted so that the Holder of any Security
thereafter surrendered for conversion shall be entitled to receive the
number of shares of Common Stock of the Company which such holder would
have owned or have been entitled to receive after the happening of any of
the events described above had such Security been converted immediately
prior to the record date in the case of a dividend or the effective date
in the case of subdivision or combination. An adjustment made pursuant to
this subparagraph (i) shall become effective immediately after the record
date in the case of a dividend, except as provided in subparagraph (vii)
below, and shall become effective immediately after the effective date in
the case of a subdivision or combination.
<PAGE>
(ii) In case the Company shall issue rights or warrants to all
holders of shares of Common Stock entitling them (for a period expiring
within 45 days after the record date mentioned below) to subscribe for or
purchase shares of Common Stock at a price per share less than the current
market price per share of Common Stock (as defined for purposes of this
subparagraph (ii) in subparagraph (v) below), the Conversion Price in
effect after the record date for the determination of stockholders
entitled to receive such rights or warrants shall be determined by
multiplying the Conversion Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding on such record date plus the number of
shares of Common Stock which the aggregate offering price of the total
number of shares of Common Stock so offered would purchase at such current
market price, and the denominator of which shall be the number of shares
of Common Stock outstanding on the record date for issuance of such rights
or warrants plus the number of additional shares of Common Stock
receivable upon exercise of such rights or warrants. Such adjustment shall
be made successively whenever any such rights or warrants are issued, and
shall become effective immediately, except as provided in subparagraph
(vii) below, after such record date.
(iii) In case the Company shall distribute to all holders of Common
Stock any shares of Capital Stock of the Company (other than Common Stock)
or evidences of its indebtedness or assets (excluding cash dividends or
distributions paid from retained earnings of the Company or dividends
payable in Common Stock) or rights or warrants to subscribe for or
purchase any of its securities (excluding those rights or warrants
referred to in subparagraph (ii) above) (any of the foregoing being
hereinafter in this subparagraph (iii) called the "Assets"), then, in each
such case, the Conversion Price shall be adjusted so that the same shall
equal the price determined by multiplying the Conversion Price in effect
immediately prior to the record date for determination of stockholders
entitled to receive such distribution by a fraction the numerator of which
shall be the current market price per share (as defined for purposes of
this subparagraph (iii) in subparagraph (v) below) of the Common Stock at
such record date for determination of stockholders entitled to receive
such distribution less the then fair market value (as determined by the
Board of Directors, whose determination shall be conclusive) of the
portion of the Assets so distributed applicable to one share of Common
Stock, and the denominator of which shall be the current market price per
share (as defined in subparagraph (v) below) of the Common Stock at such
record date. Such adjustment shall become effective immediately, except as
provided in subparagraph (vii) below, after the record date for the
determination of stockholders entitled to receive such distribution.
(iv) If, pursuant to subparagraph (ii) or (iii) above, the number of
shares of Common Stock into which a Security is convertible shall have
been adjusted because the Company has declared a dividend, or made a
distribution, on the outstanding shares of Common Stock in the form of any
right or warrant to purchase securities of the
<PAGE>
Company, or the Company has issued any such right or warrant, then, upon
the expiration of any such unexercised right or unexercised warrant, the
Conversion Price shall forthwith be adjusted to equal the Conversion Price
that would have applied had such right or warrant never been declared,
distributed or issued.
(v) For the purpose of any computation under subparagraphs (ii) or
(iii) above, the current market price per share of Common Stock on any
date shall be deemed to be the average of the daily closing prices of the
Common Stock for the shorter of (i) 30 consecutive Trading Days ending on
the last full Trading Day on the exchange or market specified in the
second following sentence prior to the Time of Determination or (ii) the
period commencing on the date next succeeding the first public
announcement of the issuance of such rights or warrants or such
distribution through such last full Trading Day prior to the Time of
Determination. The term "Time of Determination" as used herein shall be
the time and date of the earlier of (x) the determination of stockholders
entitled to receive such rights, warrants, or distributions or (y) the
commencement of "ex-dividend" trading in the Common Stock on the exchange
or market specified in the following sentence. The closing price for each
day shall be the reported last sales price, regular way, or, in case no
sale takes place on such day, the average of the reported closing bid and
asked prices, regular way, in either case as reported on the New York
Stock Exchange Composite Tape or, if the Common Stock is not listed or
admitted to trading on the New York Stock Exchange at such time, on the
principal national securities exchange on which the Common Stock is listed
or admitted to trading or, if not listed or admitted to trading on any
national securities exchange, on the Nasdaq National Market ("NNM") or, if
the last sales price or closing bid and asked prices for the Common Stock
on each such day shall not have been reported through NNM, the average of
the bid and asked prices for such date as furnished by any New York Stock
Exchange member firm regularly making a market in the Common Stock
selected for such purpose by the Company or, if no such quotations are
available, the fair market value of the Common Stock as determined by a
New York Stock Exchange member firm regularly making a market in the
Common Stock selected for such purpose by the Company. As used herein, the
term "Trading Day" with respect to Common Stock means (x) if the Common
Stock is listed or admitted for trading on the New York Stock Exchange or
another national securities exchange, a day on which the New York Stock
Exchange or such other national securities exchange, as the case may be,
is open for business or (y) if the Common Stock is quoted on NNM, a day on
which trades may be made on NNM or (z) otherwise, any day other than a
Saturday or Sunday or a day on which banking institutions in the State of
New York are authorized or obligated by law or executive order to close.
(vi) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% in
such price; provided, however, that any adjustments which by reason of
this subparagraph (vi) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment.
<PAGE>
All calculations under this Section 1505(a) shall be made to the nearest
cent or to the nearest .01 of a share, as the case may be, with one-half
cent and .005 of a share, respectively, being rounded upward. Anything in
this Section 1505(a) to the contrary notwithstanding, the Company shall be
entitled to make such reductions in the Conversion Price, in addition to
those required by this Section 1505(a), as it in its discretion shall
determine to be advisable in order that any stock dividend, subdivision of
shares, distribution of rights or warrants to purchase stock or
securities, or distribution of other assets (other than cash dividends)
hereafter made by the Company to its stockholders shall not be taxable.
(vii) In any case in which this Section 1505(a) provides that an
adjustment shall become effective immediately after a record date for an
event, the Company may defer until the occurrence of such event (x)
issuing to the Holder of any Security converted after such record date and
before the occurrence of such event the additional shares of Common Stock
issuable upon such conversion by reason of the adjustment required by such
event over and above the Common Stock issuable upon such conversion before
giving effect to such adjustment and (y) paying to such holder any amount
of cash in lieu of any fractional share of Common Stock pursuant to
Section 1504.
(viii) Whenever the Conversion Price is adjusted as herein provided,
the Company shall file with the Trustee an Officers' Certificate, setting
forth the Conversion Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment, which certificate shall
be conclusive evidence of the correctness of such adjustment; provided,
however, that the failure of the Company to file such Officers'
Certificate shall not affect the legality or validity of any corporate
action by the Company.
(ix) Whenever the Conversion Price for any series of Securities is
adjusted as provided in this Section 1505(a), the Company shall cause to
be mailed to each Holder of Securities of such series at its then
registered address by first-class mail, postage prepaid, a notice of such
adjustment of the Conversion Price setting forth such adjusted Conversion
Price and the effective date of such adjusted Conversion Price; provided,
however, that the failure of the Company to give such notice shall not
affect the legality or validity of any corporate action by the Company.
(b) (i) Notwithstanding any other provision herein to the contrary, if any
of the following events occur, namely (x) any reclassification or change of
outstanding shares of Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
a subdivision or combination of the Common Stock), (y) any consolidation, merger
or combination of the Company with or into another corporation as a result of
which holders of Common Stock shall be entitled to receive stock, securities or
other property or assets (including cash) with respect to or in exchange for
such Common Stock, or (z) any sale or conveyance of all or substantially all of
the assets of the Company to any other
<PAGE>
entity as a result of which holders of Common Stock shall be entitled to receive
stock, securities or other property or assets (including cash) with respect to
or in exchange for such Common Stock, then appropriate provision shall be made
by supplemental indenture so that (A) the Holder of any outstanding Security
that is convertible into Common Stock shall have the right to convert such
Security into the kind and amount of the shares of stock and securities or other
property or assets (including cash) that would have been receivable upon such
reclassification, change, consolidation, merger, combination, sale, or
conveyance by a holder of the number of shares of Common Stock issuable upon
conversion of such Security immediately prior to such reclassification, change,
consolidation, merger, combination, sale or conveyance and (B) the number of
shares of any such other stock or securities into which such Security shall
thereafter be convertible shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the terms of
adjustment provided for in this Section, and Sections 1502, 1503, 1504, 1506,
1507, 1508 and 1509 shall apply on like terms to any such other stock or
securities.
(ii) In case of any reclassification or change of the Common Stock (other
than a subdivision or combination of its outstanding Common Stock, or a change
in par value, or from par value to no par value, or from no par value to par
value), or of any consolidation, merger or combination of the Company with or
into another corporation or of the sale or conveyance of all or substantially
all of the assets of the Company, the Company shall cause to be filed with the
Trustee and to be mailed to each Holder of Securities that are convertible into
shares of Common Stock at such Holder's registered address, the date on which
such reclassification, change, consolidation, merger, combination, sale or
conveyance is expected to become effective, and the date as of which it is
expected that holders of Common Stock shall be entitled to exchange their Common
Stock for stock, securities or other property deliverable upon such
reclassification, change, consolidation, merger, combination, sale or
conveyance.
Section 1506. Taxes on Shares Issued.
The delivery of stock certificates upon conversions of Securities shall be
made without charge to the Holder converting a Security for any tax in respect
of the issue thereof. The Company shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the delivery of
stock registered in any name other than of the Holder of any Security converted,
and the Company shall not be required to deliver any such stock certificate
unless and until the person or persons requesting the delivery thereof shall
have paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
Section 1507. Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock.
The Company covenants that all shares of Common Stock which may be
delivered upon conversion of Securities of any series which are convertible into
Common Stock will upon
<PAGE>
delivery be fully paid and nonassessable by the Company and free from all taxes,
liens and charges with respect to the issue thereof.
The Company covenants that if any shares of Common Stock to be provided
for the purpose of conversion of Securities hereunder require registration with
or approval of any governmental authority under any Federal or state law before
such shares may be validly delivered upon conversion, the Company will in good
faith and as expeditiously as possible endeavor to secure such registration or
approval, as the case may be.
The Company further covenants that it will, if permitted by the rules of
the New York Stock Exchange, or such other national stock exchange on which the
Common Stock is listed or admitted to trading or if permitted by the rules of
Nasdaq if the Common Stock is approved by it for listing or quotation, list and
keep listed for so long as the Common Stock shall be so listed on such exchange,
upon official notice of issuance, all Common Stock deliverable upon conversion
of Securities of any series which are convertible into Common Stock.
Section 1508. Responsibility of Trustee.
Neither the Trustee nor any conversion agent shall at any time be under
any duty or responsibility to any Holder of Securities to determine whether any
facts exist which may require any adjustment of the Conversion Price applicable
to such Securities, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same, or
whether any such supplemental indenture need be entered into. Neither the
Trustee nor any conversion agent shall be accountable with respect to the
validity or value (or the kind or amount) of any shares of Common Stock, or of
any securities or property, which may at any time be delivered upon the
conversion of any Security; and neither the Trustee nor any conversion agent
makes any representation with respect thereto. Neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company to deliver
any shares of Common Stock or stock certificates or other securities or property
or cash upon the surrender of any Security for the purpose of conversion or for
any failure of the Company to comply with any of the covenants of the Company
contained in this Article Fifteen.
Section 1509. Covenant to Reserve Shares.
The Company covenants that it will at all times reserve and keep
available, free from pre-emptive rights, out of its authorized but unissued
Common Stock, such number of shares of Common Stock as shall then be deliverable
upon the conversion of all Outstanding Securities of any series of Securities
which are convertible into Common Stock.
Section 1510. Other Conversions.
<PAGE>
If so provided in a Board Resolution with respect to the Securities of a
series, the principal amount of the Securities of such series may be convertible
into or exchangeable for a principal amount of other securities of the Company
(which other securities may be issued under this Indenture or otherwise) or
convertible into or exchangeable for securities of another Person, and the
issuance of such securities upon any such conversion or exchange shall be made
in accordance with the terms of such Board Resolution.
ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS, SHAREHOLDERS,
OFFICERS AND DIRECTORS
Section 1601. Immunity of Incorporators, Shareholders, Officers and Directors.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, shareholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations, and that no
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, shareholders, officers or directors, as such, of the Company or
any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by this Indenture or in any of the
Securities or implied therefrom; and that any and all such personal liability of
every name and nature, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, shareholder, officer or director, as such, because of the creation
of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom are hereby expressly waived and released as a condition of,
and as a consideration for, the execution of this Indenture and the issue of
such Securities.
* * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
RICHFOOD HOLDINGS, INC.
By: __________________________
Its: ___________________________
THE BANK OF NEW YORK,
as Trustee
By:___________________________
Its:___________________________
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Richfood Holding, Inc.:
We consent to the incorporation by reference in the registration statement (No.
333-65061) on Form S-3 of Richfood Holdings, Inc. of our report dated
February 17, 1998, except as to note 1, which is as of February 20, 1998, with
respect to the consolidated balance sheets of Farm Fresh, Inc. and subsidiaries
as of January 3, 1998 and December 28, 1996, and the related consolidated
statements of loss, stockholder's deficit, and cash flows for the years then
ended, which report appears in the Form 8-K of Richfood Holdings, Inc. filed
March 19, 1998.
Our report dated February 17, 1998, except as to note 1, which is as of February
20, 1998, contains an explanatory paragraph that states that Farm Fresh, Inc.
and subsidiaries (the Company) filed a voluntary petition for relief under
Chapter 11 of the United States Bankruptcy Code on January 7, 1998. The
Bankruptcy filing, the Company's leveraged financial structure and its recurring
net losses raise substantial doubt about its ability to continue as a going
concern. The consolidate financial statements do not include any adjustments
that may result from the outcome of this uncertainty.
/s/ KPMG PEAT MARWICK LLP
Norfolk, Virginia
October 19, 1998
Exhibit 23.4
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this amendment No. 1 to Form S-3 registration statement
(Registration No. 333-65061) of our report dated April 28, 1998, with respect to
the consolidated financial statements of Dart Group Corporation included in the
Current Report on Form 8-K of Richfood Holdings, Inc. dated May 13, 1998 (filed
on May 28, 1998) and to all references to our Firm included in this registration
statement.
/s/ ARTHUR ANDERSEN LLP
Washington, D.C.
October 19, 1998
Exhibit 25.1
==========================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification
no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
Richfood Holdings, Inc.
(Exact name of obligor as specified in its charter)
Virginia 54-1438602
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
4860 Cox Road, Suite 300
Glen Allen, Virginia 23060
(Address of principal executive offices) (Zip code)
----------------------
Senior Debt Securities
(Title of the indenture securities)
==========================================================================
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 8th day of October, 1998.
THE BANK OF NEW YORK
By: /s/ ROBERT A. MASSIMILLO
------------------------------
Name: ROBERT A. MASSIMILLO
Title: ASSISTANT VICE
PRESIDENT
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin ................. $ 6,397,993
Interest-bearing balances .......... 1,138,362
Securities:
Held-to-maturity securities ........ 1,062,074
Available-for-sale securities ...... 4,167,240
Federal funds sold and Securities pur-
chased under agreements to resell... 391,650
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ................. 36,538,242
LESS: Allowance for loan and
lease losses .............. 631,725
LESS: Allocated transfer risk
reserve.......................... 0
Loans and leases, net of unearned
income, allowance, and reserve 35,906,517
Assets held in trading accounts ...... 2,145,149
Premises and fixed assets (including
capitalized leases) ................ 663,928
Other real estate owned .............. 10,895
Investments in unconsolidated
subsidiaries and associated
companies .......................... 237,991
Customers' liability to this bank on
acceptances outstanding ............ 992,747
Intangible assets .................... 1,072,517
Other assets ......................... 1,643,173
-----------
Total assets ......................... $55,830,236
===========
LIABILITIES
Deposits:
In domestic offices ................ $24,849,054
Noninterest-bearing ...... 10,011,422
Interest-bearing ......... 14,837,632
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 15,319,002
Noninterest-bearing ......... 707,820
Interest-bearing ......... 14,611,182
Federal funds purchased and Securities
sold under agreements to repurchase. 1,906,066
Demand notes issued to the U.S.
Treasury ........................... 215,985
Trading liabilities .................. 1,591,288
Other borrowed money:
With remaining maturity of one year
or less .......................... 1,991,119
With remaining maturity of more than
one year through three years...... 0
With remaining maturity of more than
three years ...................... 25,574
Bank's liability on acceptances exe-
cuted and outstanding .............. 998,145
Subordinated notes and debentures .... 1,314,000
Other liabilities .................... 2,421,281
-----------
Total liabilities .................... 50,631,514
-----------
EQUITY CAPITAL
Common stock ......................... 1,135,284
Surplus .............................. 731,319
Undivided profits and capital
reserves ........................... 3,328,050
Net unrealized holding gains
(losses) on available-for-sale
securities ......................... 40,198
Cumulative foreign currency transla-
tion adjustments ................... (36,129)
------------
Total equity capital ................. 5,198,722
------------
Total liabilities and equity
capital ............................ $55,830,236
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi -
Alan R. Griffith | Directors
J. Carter Bacot |
-
Exhibit 25.2
==============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
Richfood Holdings, Inc.
(Exact name of obligor as specified in its charter)
Virginia 54-1438602
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
4860 Cox Road, Suite 300
Glen Allen, Virginia 23060
(Address of principal executive offices) (Zip code)
----------------------
Subordinated Debt Securities
(Title of the indenture securities)
===============================================================================
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and
Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 15th day of October, 1998.
THE BANK OF NEW YORK
By: /s/ROBERT A. MASSIMILLO
---------------------------------
Name: ROBERT A. MASSIMILLO
Title: ASSISTANT VICE
PRESIDENT
<PAGE>
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin ................. $ 6,397,993
Interest-bearing balances .......... 1,138,362
Securities:
Held-to-maturity securities ........ 1,062,074
Available-for-sale securities ...... 4,167,240
Federal funds sold and Securities pur-
chased under agreements to resell... 391,650
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ................. 36,538,242
LESS: Allowance for loan and
lease losses .............. 631,725
LESS: Allocated transfer risk
reserve.......................... 0
Loans and leases, net of unearned
income, allowance, and reserve 35,906,517
Assets held in trading accounts ...... 2,145,149
Premises and fixed assets (including
capitalized leases) ................ 663,928
Other real estate owned .............. 10,895
Investments in unconsolidated
subsidiaries and associated
companies .......................... 237,991
Customers' liability to this bank on
acceptances outstanding ............ 992,747
Intangible assets .................... 1,072,517
Other assets ......................... 1,643,173
-----------
Total assets ......................... $55,830,236
===========
LIABILITIES
Deposits:
In domestic offices ................ $24,849,054
Noninterest-bearing ...... 10,011,422
Interest-bearing ......... 14,837,632
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 15,319,002
Noninterest-bearing ......... 707,820
Interest-bearing ......... 14,611,182
Federal funds purchased and Securities
sold under agreements to repurchase. 1,906,066
Demand notes issued to the U.S.
Treasury ........................... 215,985
Trading liabilities .................. 1,591,288
Other borrowed money:
With remaining maturity of one year
or less .......................... 1,991,119
With remaining maturity of more than
one year through three years...... 0
With remaining maturity of more than
three years ...................... 25,574
Bank's liability on acceptances exe-
cuted and outstanding .............. 998,145
Subordinated notes and debentures .... 1,314,000
Other liabilities .................... 2,421,281
-----------
Total liabilities .................... 50,631,514
-----------
EQUITY CAPITAL
Common stock ......................... 1,135,284
Surplus .............................. 731,319
Undivided profits and capital
reserves ........................... 3,328,050
Net unrealized holding gains
(losses) on available-for-sale
securities ......................... 40,198
Cumulative foreign currency transla-
tion adjustments ................... (36,129)
------------
Total equity capital ................. 5,198,722
------------
Total liabilities and equity
capital ............................ $55,830,236
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
-
Thomas A. Renyi |
Alan R. Griffith | Directors
J. Carter Bacot |
-
