<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
---------------------
Date of Report (Date of earliest event reported) JULY 17, 1997
IMC GLOBAL INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 1-9759 36-3492467
(State or other (Commission File Number) (I.R.S. Employer
jurisdiction Identification
of incorporation) Number)
</TABLE>
<TABLE>
<S> <C>
2100 SANDERS ROAD, NORTHBROOK, 60062
ILLINOIS (Zip Code)
(Address of principal executive
offices)
</TABLE>
Registrant's telephone number, including area code: (847) 272-9200
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<PAGE>
ITEM 5. OTHER EVENTS.
On July 22, 1997, IMC Global Inc. completed a public offering of $150
million aggregate principal amount of 6 7/8% Senior Debentures due July 15,
2007.
The purpose of this Current Report on Form 8-K is to incorporate by
reference into the Registration Statements on Form S-3 (Nos. 33-50177 and
333-27287) of IMC Global Inc. the documents filed as exhibits hereto and to file
a Supplemental Indenture relating to the IMC Global Inc. 10 3/4% Senior Notes
due 2003.
ITEM 7. EXHIBITS.
1.1 Underwriting Agreement Basic Provisions, dated July 17, 1997, and related
Terms Agreement dated July 17, 1997 among IMC Global Inc. and Merrill Lynch
& Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan
Securities Inc. and Salomon Brothers Inc (the "Underwriters") relating to
the purchase by the Underwriters of $150,000,000 aggregate principal amount
of IMC Global Inc. 6 7/8% Senior Debentures due July 15, 2007.
4.1 Indenture dated as of July 17, 1997 between IMC Global Inc. and The Bank of
New York, as Trustee.
4.2 Form of 6 7/8% Senior Debenture due July 15, 2007.
4.3 Second Supplemental Indenture dated as of May 8, 1997, between IMC Global
Inc. and The Bank of New York, amending the Indenture dated as of June 15,
1993, relating to the IMC Global Inc. 10 3/4% Senior Notes due 2003.
2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
IMC GLOBAL INC.
By: /s/ MARSCHALL I. SMITH
-----------------------------------------
Marschall I. Smith
SENIOR VICE PRESIDENT
AND GENERAL COUNSEL
Dated: July 23, 1997
3
<PAGE>
IMC GLOBAL INC.
Securities
UNDERWRITING AGREEMENT BASIC PROVISIONS
July 17, 1997
1. INTRODUCTORY. IMC Global Inc., a Delaware corporation (the
"Company"), proposes to issue and sell from time to time senior debt securities,
subordinated debt securities, convertible subordinated debt securities
(collectively, "Debt Securities"), preferred stock and common stock registered
under the registration statement referred to in Section 2(a) ("Registered
Securities"). If specified in a Terms Agreement referred to in Section 3, the
Company proposes to grant to the underwriters an option to purchase up to that
amount of Registered Securities specified in such Terms Agreement (the "Option
Securities"). Debt Securities will be issued under one or more indentures (as
amended or supplemented from time to time, an "Indenture" and collectively, the
"Indentures"), more particularly described in a Terms Agreement, between the
Company and the trustees named therein (the "Trustee(s)"), in one or more
series, which series may vary as to interest rates, maturities, redemption
provisions, selling prices and other terms, with all such terms for any
particular series of the Debt Securities being determined at the time of sale.
The preferred stock will be issued in one or more series, which series may vary
as to voting rights, dividends, optional and mandatory redemption provisions,
liquidation preference and conversion provisions and other terms, with all such
terms for any particular series or issue of the preferred stock being determined
at the time of sale. The Registered Securities will be sold pursuant to a Terms
Agreement, for resale in accordance with terms of offering determined at the
time of sale.
The Registered Securities (together with the Option Securities)
involved in any such offering are hereinafter referred to as the "Securities."
The firm or firms which agree to purchase the Securities are hereinafter
referred to as the "Underwriters" of such Securities, and the representative or
representatives of the Underwriters, if any, specified in a Terms Agreement are
hereinafter referred to as the "Representatives"; PROVIDED, HOWEVER, that if the
Terms Agreement does not specify any representative of the Underwriters, the
term "Representatives," as used in this Agreement shall mean the Underwriters.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants as of the date of this Agreement as follows:
(a) A registration statement on Form S-3 (File No. 333-27287) and
a registration statement on Form S-3 (File No. 33-50177) with respect
to the Registered Securities have (i) been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and the rules and regulations (the
"Rules and Regulations") of the Securities and Exchange Commission
(the "Commission") thereunder and (ii) been filed with the Commission
under the Securities Act. Such registration statements have become
effective under the Securities Act. If any post-effective amendment
to such registration statements have been filed with the Commission
prior to the date of the applicable Terms Agreement, the most recent
such amendment has been declared effective by the Commission. Copies
of such registration statements and any amendments thereto have been
delivered by the Company to the Representatives. As used in this
Agreement, "Effective Time" means the respective date and time as of
which such registration statements, or the most recent post-effective
amendment thereto, if any, were declared effective by the Commission;
and "Effective Date" means the respective applicable date of the
Effective Time. As provided in Section 4(a), a prospectus supplement
relating to the Securities, the terms of the offering thereof and the
other matters set forth therein has been prepared and will be filed
pursuant to Rule 424 under the Securities Act. In addition, a
preliminary prospectus supplement reflecting the terms of the
Securities, the terms of the offering thereof, and the other matters
set forth therein also may be prepared and filed pursuant to Rule 424
under the Securities Act. Such prospectus supplement, in the form
filed on or after the date of this Agreement pursuant to Rule 424, is
referred to in this Agreement as the "Prospectus Supplement", and any
such preliminary prospectus supplement in the form filed after the
date of this Agreement pursuant to Rule 424 is referred to as the
"Preliminary Prospectus Supplement." Any prospectus accompanied by a
Preliminary Prospectus Supplement is referred to in this Agreement,
collectively with such Preliminary
<PAGE>
2
Prospectus Supplement, as a "Preliminary Prospectus." The
registration statements referred to in this Section 2(a), as amended
at the time of the Terms Agreement, including the exhibits thereto
(but excluding the Statement of Qualification and Eligibility ("Form
T-1")) and the documents filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), that are incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Securities Act (the "Incorporated
Documents") and the information, if any, deemed to be a part of the
registration statements pursuant to Rule 430A(b) under the Securities
Act, are collectively referred to as the "Registration Statement"; and
the basic prospectus included therein relating to all offerings of
securities under the Registration Statement, as supplemented by the
Prospectus Supplement, is called the "Prospectus", except that, if
such basic prospectus is amended or supplemented on or prior to the
date on which the Prospectus Supplement is first filed pursuant to
Rule 424, the term "Prospectus" shall refer to the basic prospectus as
so amended or supplemented and as supplemented by the Prospectus
Supplement, in either case including the Incorporated Documents.
Notwithstanding the foregoing, any prospectus supplement prepared or
filed with respect to an offering pursuant to the Registration
Statement of securities other than the Securities shall not be deemed
to have supplemented the Prospectus. The Commission has not issued
any order suspending the effectiveness of the Registration Statement,
and no stop order has been initiated or threatened by the Commission.
(b) On the Effective Date, the Registration Statement conformed
in all material respects to the requirements of the Securities Act and
the Rules and Regulations, and did not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
and on the date of the applicable Terms Agreement, and at the time of
filing of the Prospectus pursuant to Rule 424(b), the Prospectus will
conform in all material respects to the requirements of the Securities
Act and the Rules and Regulations, and will not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and on the
Effective Date and the Closing Date, respectively, the Indenture, if
any, described in the Terms Agreement conformed and will conform in
all material respects with the requirements of the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), and the applicable
rules and regulations thereunder; PROVIDED that no representation or
warranty is made as to (i) information contained in or omitted from
the Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company through
the Representatives by or on behalf of any Underwriter specifically
for inclusion therein or (ii) that part of the Registration Statement
which shall constitute the Form T-1 under the Trust Indenture Act.
(c) The Company and each of its subsidiaries (as defined in Rule
405 of the Rules and Regulations) have been duly incorporated and are
validly existing as corporations in good standing under the general
corporation laws of their respective jurisdictions of incorporation,
are duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses
requires such qualification and in which the failure to be so
incorporated, existing or qualified would reasonably be expected to
have a material adverse effect on the business, business prospects,
properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, and
have all power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged;
and none of the subsidiaries of the Company, other than those so
identified in the Terms Agreement, is a "significant subsidiary," as
such term is defined in Rule 405 of the Rules and Regulations.
(d) All of the issued shares of capital stock of each significant
subsidiary of the Company have been duly and validly authorized and
issued and are fully paid, non-assessable and, except for shares of
Preferred Stock of The Vigoro Corporation, are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims.
<PAGE>
3
(e) The execution, delivery and performance of the Terms
Agreement (including the provisions of this Agreement) by the Company
and the consummation of the transactions contemplated hereby and
thereby and compliance by the Company with the provisions of the
Indenture, if any, described in the Terms Agreement and the Securities
will not result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its significant subsidiaries is a party or
by which the Company or any of its significant subsidiaries is bound
or to which any of the property or assets of the Company or any of its
significant subsidiaries is subject, nor will such actions result in
any violation of the provisions of the charter or by-laws of the
Company or any of its significant subsidiaries or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its significant
subsidiaries or any of their properties or assets; and except for the
registration of the Securities under the Securities Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under the Trust Indenture Act or the Exchange Act,
and applicable state or foreign securities laws in connection with the
offer, sale and distribution of the Securities by the Underwriters, no
consent, approval, authorization or order of, or filing or
registration is required for the execution, delivery and performance
of the Terms Agreement (including the provisions of this Agreement) by
the Company and the consummation of the transactions contemplated
hereby and thereby or compliance by the Company with the provisions of
the Indenture, if any, described in the Terms Agreement.
(f) Except for the Registration Rights Agreement dated March 1,
1996 between the Company and certain former shareholders of The Vigoro
Corporation (the "Registration Rights Agreement"), there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to
include any securities owned or to be owned by such person in the
securities registered pursuant to the Registration Statement, or,
except as described in the Prospectus or Schedule B to the Terms
Agreement, to require the Company to file any other registration
statement under the Securities Act (other than a registration
statement on Form S-8) with respect to any securities of the Company
owned or to be owned by such person or to require the Company to
include such securities in any securities being registered pursuant
to any other registration statement filed by the Company under the
Securities Act. Each of the persons who is a party to the
Registration Rights Agreement has waived such person's rights with
respect to including securities owned by such person in the
Registration Statement.
(g) The Indenture, if any, described in the Terms Agreement has
been duly authorized, executed and delivered by the Company and
(assuming the due authorization, execution and delivery thereof by the
Trustee under the Indenture) constitutes the valid and legally binding
obligation of the Company, enforceable against the Company in
accordance with its terms; the Debt Securities, if any, described in
the Terms Agreement have been duly authorized by the Company and, when
the terms of the Debt Securities and of their issuance and sale have
been duly established in accordance with the Indenture, this Agreement
and the Terms Agreement and the Debt Securities have been duly
executed, authenticated, issued and delivered in the manner provided
in the Indenture and paid for in accordance with this Agreement and
the Terms Agreement, the Debt Securities will be duly and validly
issued and delivered by the Company and will constitute valid and
legally binding obligations of the Company, enforceable against the
Company in accordance with their terms and entitled to the benefits of
the Indenture; if any Securities to be issued are convertible, the
shares of common stock issuable upon conversion thereof have been duly
authorized by the Company, have been duly reserved for issuance upon
conversion of the Securities and, when issued upon the conversion of
the Securities, will be duly and validly issued, fully paid and
non-assessable; the common stock and preferred stock, if any,
described in the Terms Agreement have been duly authorized by the
Company and, when issued and paid for pursuant to the Terms Agreement,
will be duly and validly issued, fully paid and non-assessable; no
further approval or authority of the stockholders or the Board of
Directors of the Company will be required for the issuance and sale of
the Securities as contemplated herein or the issuance of the shares of
common
<PAGE>
4
stock upon conversion of the Securities; and the Securities, the
Indenture, if any, described in the Terms Agreement and the capital
stock of the Company will conform in all material respects to the
descriptions thereof contained in the Registration Statement and the
Prospectus.
(h) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, which would
reasonably be expected to have a material adverse effect on the
business, business prospects, properties, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus; and, since such date, there has not
been any material change in the capital stock or long-term debt of the
Company or any of its subsidiaries (otherwise than as set forth or
contemplated in the Prospectus) or any material adverse change in or
affecting, or any adverse development which materially affects, the
business, business prospects, properties, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus.
(i) The financial statements (including the related notes and
supporting schedules) included or incorporated by reference in the
Registration Statement or included or incorporated by reference in the
Prospectus present fairly in all material respects the financial
condition and results of operations of the entities purported to be
shown thereby, at the dates and for the periods indicated, and have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved, except as otherwise stated therein.
(j) Ernst & Young LLP, or such other independent accountants
acceptable to the Representatives, who have certified certain
financial statements of the Company and whose report appears or is
incorporated by reference in the Prospectus, are independent public
accountants as required by the Securities Act and the Rules and
Regulations during the periods covered by the financial statements on
which they reported contained in the Prospectus.
(k) The Company has no reason to believe that the Company and
each of its subsidiaries do not own or possess adequate rights to use
all material patents, patent applications, trademarks, service marks,
trade names, trademark registrations, service mark registrations,
copyrights and licenses necessary for the conduct of their respective
businesses in the manner described in the Prospectus and have no
reason to believe that the conduct of their respective businesses will
conflict with any such rights of others, and have not received any
notice of any claims of conflict with any such rights of others, which
claims are reasonably expected to have a material adverse effect on
the business, business prospects, properties, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole.
(l) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which are reasonably expected to
have a material adverse effect on the business, business prospects,
properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole; and
to the actual knowledge of the Company, no such proceedings are
threatened by governmental authorities or by others.
(m) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statement by the
Securities Act or by the Rules and Regulations which have not been
filed as exhibits to the Registration Statement.
<PAGE>
5
(n) No relationship, direct or indirect, exists between or among
the Company on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other hand,
which is required to be described in the Prospectus and which is not
so described.
(o) Except as described in the Prospectus, since the date as of
which information is given in the Prospectus, the Company has not (i)
issued or granted any rights to acquire any securities (other than
pursuant to employee benefit plans or other compensation plans
existing on the date of the Terms Agreement) or (ii) declared or paid
any dividend on its capital stock other than regular quarterly cash
dividends.
(p) Neither the Company nor any of its subsidiaries,
respectively, (i) is in violation of its charter or by-laws, (ii) is in
default, and no event has occurred which, with notice or lapse of time
or both, would constitute a default, in the due performance or
observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to
which any of its properties or assets is subject or (iii) is in
violation of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject or
has failed to obtain any license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership
of its property or to the conduct of its business except, in the case
of clauses (ii) and (iii), for those defaults, violations or failures
which, either individually or in the aggregate, are not reasonably
expected to have a material adverse effect on the business, business
prospects, properties, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole.
(q) The Company is not required to be registered, and is not
regulated, as an "investment company" as such term is defined under
the United States Investment Company Act of 1940.
(r) Except as described in the Registration Statement and except
as would not, singly or in the aggregate, result in a material adverse
effect on the business, business prospects, properties, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole, (A) neither the Company nor any
of its subsidiaries is in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code, policy or
rule of common law or any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent,
decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials")
or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials
(collectively, "Environmental Laws"), (B) the Company and its
subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance
with their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against
the Company or any of its subsidiaries, (D) there are no events or
circumstances that might reasonably be expected to form the basis of
an order for clean-up or remediation, or an action, suit or proceeding
by any private party or governmental body or agency, against or
affecting the Company or any of its subsidiaries relating to Hazardous
Materials or any Environmental Laws.
3. PURCHASE AND OFFERING OF THE SECURITIES BY THE UNDERWRITERS. The
obligation of the Underwriters to purchase the Securities will be evidenced
by an exchange of a telegram, telex or other written communications ("Terms
Agreement") at each time the Company determines to sell the Securities.
Each Terms Agreement will be in the form of Annex II (A) or (B) attached
hereto and will incorporate by
<PAGE>
6
reference the provisions of this Agreement, except as otherwise provided
therein, and will specify the firm or firms which will be Underwriters, the
names of any Representatives, the amount to be purchased by each
Underwriter, the purchase price to be paid by the Underwriters and certain
terms of the Securities and whether any of the Securities may be sold to
institutional investors pursuant to Delayed Delivery Contracts (as defined
below). The Terms Agreement will also specify the time and date of
delivery and payment (such time and date being herein and in the Terms
Agreement referred to as the "Closing Date"), the place of delivery and
payment and any details of the terms of public offering that should be
reflected in the Prospectus Supplement relating to the offering of the
Securities. The obligations of the Underwriters to purchase the Securities
will be several and not joint. It is understood that the Underwriters
propose to offer the Securities for sale as set forth in the Prospectus.
Debt Securities, if any, delivered to the Underwriters on the Closing Date
will be in definitive fully registered form, in such denominations and
registered in such names as the Underwriters may request.
If specified in a Terms Agreement, on the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions set forth in this Agreement, the
Company grants an option to the several Underwriters to purchase, severally
and not jointly, up to that amount of the Option Securities as shall be
specified in the Terms Agreement from the Company at the same price as the
Underwriters shall pay for the Registered Securities. Said option may be
exercised only to cover over-allotments in the sale of the Registered
Securities by the Underwriters and may be exercised in whole or in part at
any time on or before the thirtieth day after the date of the Terms
Agreement upon written or telegraphic notice by the Representatives to the
Company setting forth the amount of the Option Securities as to which the
several Underwriters are exercising the option. The amount of Option
Securities to be purchased by each Underwriter shall be the same percentage
of the total amount of the Option Securities to be purchased by the several
Underwriters as such Underwriter is purchasing of the Registered
Securities, as adjusted by the Representatives in such manner as the
Representatives deem advisable to avoid fractional shares/units.
If the Terms Agreement provides for sales of Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to
solicit offers to purchase Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached hereto ("Delayed
Delivery Contract") with such changes therein as the Company may authorize
or approve. Delayed Delivery Contracts are to be made only with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and
charitable institutions. On the Closing Date the Company will pay, as
compensation, to the Representatives for the accounts of the Underwriters,
the fee set forth in such Terms Agreement in respect of the amount of
Securities to be sold pursuant to Delayed Delivery Contracts ("Contract
Securities"). The Underwriters will not have any responsibility in respect
of the validity or the performance of Delayed Delivery Contracts. If the
Company executes and delivers Delayed Delivery Contracts, the Contract
Securities will be deducted from the Securities to be purchased by the
several Underwriters and the aggregate amount of Securities to be purchased
by each Underwriter will be reduced pro rata in proportion to the amount of
Securities set forth opposite each Underwriter's name in such Terms
Agreement, except to the extent that the Representatives determine that
such reduction shall be otherwise than pro rata and so advise the Company.
The Company will advise the Representatives not later than the business day
prior to the Closing Date of the amount of Contract Securities.
4. COVENANTS OF THE COMPANY. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus, including the Prospectus
Supplement, pursuant to Rule 424(b) within the time period prescribed
by the Rules and Regulations; to notify the Representatives, promptly
after it receives notice, of the time when the Registration Statement
or any amendment thereto becomes effective or promptly after the
filing of any supplement or amendment to the Prospectus (other than
any Incorporated Document or any amendment or supplement relating to
an offering of securities other than the Securities) and to furnish
the Representatives with copies thereof; to notify the
Representatives, promptly after it receives notice thereof, of the
issuance by the Commission of any
<PAGE>
7
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or the Prospectus or
for additional information; and, in the event of the issuance of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) To furnish promptly to each of the Representatives and to
counsel for the Underwriters a copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed
with the Commission, including all exhibits filed therewith;
(c) To furnish promptly to each of the Representatives copies of
the Registration Statement, including all exhibits, any Preliminary
Prospectus, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as
are reasonably requested;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may be required by the Securities Act, in the
reasonable judgment of the Company or the Representatives, or
requested by the Commission;
(e) Prior to filing with the Commission any (i) amendment to the
Registration Statement or supplement to the Prospectus or (ii) any
Prospectus pursuant to Rule 424 of the Rules and Regulations (other
than any Incorporated Document or any amendment or supplement relating
to an offering of securities other than the Securities), to furnish a
copy thereof to the Representatives and counsel for the Underwriters;
(f) As soon as practicable but no later than 16 months after the
date of each Terms Agreement, to make generally available to its
security holders an earning statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Securities Act (including, at the option of the Company, Rule
158) covering a period of at least twelve months beginning on the
first day of the first fiscal quarter of the Company commencing after
the later of (i) the effective date of the Registration Statement,
(ii) the effective date of the most recent post-effective amendment to
the Registration Statement to become effective prior to the date of
such Terms Agreement and (iii) the date of the Company's most recent
Annual Report on Form 10-K filed with the Commission prior to the date
of such Terms Agreement;
(g) During the period, if any, specified in the Terms Agreement
after the date of such Terms Agreement, to furnish to the
Representatives copies of all materials furnished by the Company to
its stockholders and all public reports and financial statements
furnished by the Company to the principal national securities exchange
upon which the common stock of the Company may be listed pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the
Commission thereunder;
(h) Promptly from time to time, to take such action as the
Representatives reasonably may request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Securities; PROVIDED, HOWEVER, that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject;
and
<PAGE>
8
(i)(A) In the event of an offering of common stock, preferred
stock or convertible debt securities, not to (i) offer for sale, sell
or otherwise dispose of, directly or indirectly, any shares of common
stock of the Company or permit the registration under the Securities
Act of any shares of common stock of the Company (other than the
Securities and shares issued pursuant to employee benefit plans,
qualified stock option plans or other employee compensation plans),
(ii) sell or grant options, rights or warrants with respect to any
shares of common stock of the Company (other than the Securities and
the grant of options pursuant to employee benefit plans), or (iii)
offer for sale, sell or otherwise dispose of, directly or indirectly,
any securities convertible into or, exchangeable or exercisable for
common stock of the Company (other than the Securities), without, in
any case, the prior written consent of a majority of the
Representatives; PROVIDED, HOWEVER, the Company may, without such
consent, offer and sell shares of common stock of the Company in
transactions exempt from the registration requirements of the
Securities Act, provided that the purchasers in such transactions are
prohibited from offering for sale, selling or otherwise disposing of,
directly or indirectly, any of the shares of common stock of the
Company so acquired by them for the remainder of the period specified
in the Terms Agreement and, (B) in the event of an offering of Debt
Securities, between the date of the Terms Agreement and fourteen (14)
calendar days after the date of delivery of the Debt Securities, not
to offer for sale, sell or cause to be offered for sale or sold,
without the prior written consent of a majority of the
Representatives, any debt securities.
5. EXPENSES. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Securities and any taxes
payable in connection therewith; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereto (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus and any Incorporated Documents, all as provided in this Agreement;
(d) the costs of reproducing and distributing this Agreement; (e) the filing
fees incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of sale of the Securities, if
necessary; (f) any applicable stock exchange listing or other fees; (g) the fees
and expenses of filings, if any, with foreign securities administrators and of
qualifying the Securities under the securities laws of the several jurisdictions
as provided in Section 4(h) and of preparing, reproducing and distributing a
Blue Sky Memorandum (including related fees (in an amount not to exceed $10,000)
and disbursements of counsel to the Underwriters); (h) the fees paid to rating
agencies in connection with the rating of the Securities; (i) the costs of
printing and issuance of certificates, if any; (j) reasonable fees and
disbursements of the Trustee and any transfer agent; and (k) all other
reasonable costs and expenses incident to the performance of the obligations of
the Company under this Agreement; PROVIDED that except as provided in this
Section 5 and in Section 10, the Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel and the expenses of
advertising any offering of the Securities made by the Underwriters, and the
Company shall pay the fees and expenses of its counsel and any transfer taxes
payable in connection with its sale of Securities to the Underwriters.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and at the time of delivery of any Securities pursuant to a Terms Agreement, of
the representations and warranties of the Company contained in this Agreement,
to the performance by the Company of its obligations under this Agreement, and
to each of the following additional terms and conditions:
(a) The Prospectus as amended or supplemented shall have been filed
with the Commission pursuant to Rule 424(b) under the Securities Act within
the applicable time period prescribed for such filing by the Rules and
Regulations and in accordance with Section 4(a); no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the Company
on or prior to the Closing Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an
<PAGE>
9
untrue statement of a fact which, in the opinion of the counsel for the
Underwriters, is material or omits to state a fact which, in the opinion of
such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Terms Agreement,
the Indenture, if any, described in the Terms Agreement, the Securities,
the Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the Terms Agreement and the transactions
contemplated hereby and thereby shall be satisfactory in all material
respects to counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Sidley & Austin, counsel to the Company, or other counsel to the
Company satisfactory to the Representatives, shall have furnished to the
Representatives their written opinion, as counsel to the Company, addressed
to the Underwriters and dated the Closing Date, and, if Option Securities
are purchased, at any date after the Closing Date as specified in a Terms
Agreement, additional opinions from such counsel, in form and substance
acceptable to the Representatives to the effect that:
(i) The Indenture, if any, described in the Terms Agreement has
been duly authorized, executed and delivered by the Company and duly
qualified under the Trust Indenture Act, and, assuming due
authorization, execution and delivery thereof by the Trustee,
constitutes a valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing;
(ii) The Debt Securities, if any, described in the Terms Agreement
have been duly authorized by the Company, and when the Debt Securities
have been duly executed, authenticated, issued and delivered in the
manner provided in the Indenture and paid for in accordance with this
Agreement and the Terms Agreement or, in the case of Contract
Securities, in accordance with Delayed Delivery Contracts, the Debt
Securities will be duly and validly issued and delivered by the Company
and will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms
and entitled to the benefits of the Indenture, subject to bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally,
general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair
dealing;
(iii) If any Securities to be issued are convertible into common
stock, the shares of common stock initially issuable upon conversion
of the Securities have been reserved for issuance upon such
conversion; and when certificates therefor have been duly executed,
countersigned, registered and delivered upon such conversion, will
constitute shares of common stock which have been duly authorized and
validly issued and are fully paid and non-assessable;
(iv) The common stock and preferred stock, if any, described in
the Terms Agreement; when certificates therefor have been duly
executed, countersigned, registered and delivered in accordance with
this Agreement and the Terms Agreement or, in the case of Contract
Securities, in accordance with Delayed Delivery Contracts, constitute
shares of common stock or preferred stock, as the case may be, which
have been duly authorized and validly issued and are fully paid and
non-assessable;
<PAGE>
10
(v) The Registration Statement was declared effective under the
Securities Act as of the date specified in such opinion; any required
filing of the Prospectus pursuant to Rule 424(b) of the Rules and
Regulations has been made within the time period prescribed for such
filing by the Rules and Regulations; and, to the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the knowledge of such
counsel, no proceeding for that purpose is pending or threatened by
the Commission;
(vi) At the Effective Time, the Registration Statement (including
all documents incorporated by reference therein) complied, and on the
date of the Terms Agreement, the Prospectus (including all documents
incorporated by reference therein) complies, and any further
amendments or supplements thereto made by the Company on or prior to
the date of such opinion comply (other than, in each case, the
financial statements and related schedules and other financial and
statistical data included or incorporated by reference therein and the
Form T-1 under the Trust Indenture Act, as to which such counsel need
express no opinion) as to form in all material respects with the
requirements of the Securities Act, the Exchange Act and the
applicable rules and regulations under said Acts;
(vii) The Securities (other than any Contract Securities), the
Indenture and the capital stock of the Company conform, and any
Contract Securities, when issued, delivered and sold, will conform, in
all material respects to the descriptions thereof contained or
incorporated by reference in the Registration Statement and the
Prospectus; and the provisions of the contracts, agreements and
instruments (as the same may be in effect on the Closing Date)
summarized in the Prospectus, any supplement thereto or any document
incorporated by reference therein, conform in all material respects to
the descriptions thereof in the Prospectus, any supplement thereto or
any document incorporated by reference therein;
(viii) To such counsel's knowledge, there are no contracts or other
documents which are required to be filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been so filed.
(ix) The Terms Agreement, this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and delivered by the
Company; and
(x) The sale of the Securities by the Company, compliance by the
Company with all of the provisions of this Agreement, the Terms
Agreement, the Indenture, if any, described in the Terms Agreement,
any Delayed Delivery Contracts and the Securities and the consummation
by the Company of the transactions contemplated hereby and thereby
will not result in a breach or violation of any of the terms or
provisions of, or constitute a default under, the charter or by-laws
of the Company or the terms of any indenture or, to our knowledge, any
other material agreement or instrument to which the Company or any of
its subsidiaries is a party or by which any of them is bound; and,
except for the registration of the Securities under the Securities Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Trust Indenture Act, the
Exchange Act and applicable state or foreign securities laws in
connection with the offer and sale of the Securities by the
Underwriters, to such counsel's knowledge, no consent, approval,
authorization or order of, or filing or registration with, any court
or any governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby;
In addition, such counsel shall state that in the course of the preparation
of the Registration Statement and the Prospectus, such counsel has
considered the information set forth therein in light of the matters
required to be set forth therein and such counsel has participated in
conferences with officers and representatives of the Company, including its
independent public accountants and, with respect to the Prospectus,
representatives of and counsel for the Representatives during the course of
which the contents of the Registration Statement and Prospectus and related
matters were discussed and, although such counsel shall
<PAGE>
11
not have independently checked the accuracy or completeness of, or
otherwise verified, and accordingly are not passing upon, and shall not
assume responsibility for, the accuracy, completeness or fairness of the
statements contained in or incorporated by reference in the Registration
Statement and Prospectus (except as set forth in subparagraph (vii) above)
and have relied as to materiality, to the extent deemed appropriate in
accordance with such counsel's professional responsibilities, upon the
judgment of officers and representatives of the Company, as a result of
such consideration and participation, nothing has come to the attention of
such counsel which causes such counsel to believe that the Registration
Statement, as of the Effective Time or, if later, as of the date of the
Company's most recent filing of an Annual Report on Form 10-K (including
such Annual Report on Form 10-K), contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that
the Prospectus, as of the date of such opinion, includes an untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading (except that, in each case, such
counsel need not express any belief as to the financial statements and
related schedules and other financial and statistical data included or
incorporated by reference in the Registration Statement or the Prospectus).
In rendering such opinion, such counsel may (i) state that their
opinion is limited to the federal laws of the United States, the laws of
the State of New York and the General Corporation Law of the State of
Delaware, (ii) rely as to matters of fact upon the representations
contained in this Agreement and the certificates of officers of the Company
and it subsidiaries and of public officials; PROVIDED that such counsel
shall furnish copies thereof to the Representatives.
(e) The General Counsel or other counsel of the Company, shall have
furnished to the Representatives his written opinion, addressed to the
Underwriters and dated the Closing Date, and, if Option Securities are
purchased, at any date after the Closing Date as specified in a Terms
Agreement, additional opinions from such counsel, in form and substance
satisfactory to the Representatives to the effect that:
(i) The Company and each of its significant subsidiaries (as
defined in Rule 405 under the Securities Act and identified in the
Terms Agreement) have been duly incorporated and are validly existing
as corporations in good standing under the general corporation laws of
their respective jurisdictions of incorporation and have all corporate
power and authority necessary to own or hold their respective
properties and conduct the businesses in which they are engaged;
(ii) All of the issued shares of capital stock of each
significant subsidiary have been duly and validly authorized and
issued and are fully paid, non-assessable and (except for directors'
qualifying shares) owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims;
(iii) To such counsel's knowledge, and other than as set forth or
contemplated in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which are reasonably expected to have a
material adverse effect on the business, business prospects,
properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole; and,
to such counsel's knowledge, no such proceedings are threatened by
governmental authorities or by others;
(iv) The sale of the Securities by the Company and the compliance
by the Company with all of the provisions of this Agreement, the Terms
Agreement, the Indenture, if any, described in the Terms Agreement,
any Delayed Delivery Contract and the Securities, and the consummation
of the transactions contemplated hereby and thereby will not result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, nor will
<PAGE>
12
such actions result in any violation of the provisions of the charter
or by-laws of the Company or any significant subsidiary or of any
statute or any order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties or
assets (except that such counsel need express no opinion with respect
to applicable state or foreign securities laws);
(v) To such counsel's knowledge, neither the Company nor any
significant subsidiary (A) is in violation of its charter or by-laws,
(B) is in default, and no event has occurred, which, with notice or
lapse of time or both, would constitute a default, in the due
performance or observance of any term, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is bound
or to which any of its properties or assets is subject or (C) is in
violation of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject or
has failed to obtain any license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership
of its property or to the conduct of its business except, in the case
of clauses (B) and (C), for those defaults, violations or failures
which, either individually or in the aggregate, are not reasonably
expected to have a material adverse effect on the business, business
prospects, properties, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole; and
(vi) To such counsel's knowledge, except for the Registration
Rights Agreement, there are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to include any securities owned or to be owned by
such person in the securities registered pursuant to the Registration
Statement, or, except as described in the Prospectus or Schedule B to
the Terms Agreement, to require the Company to file any other
registration statement under the Securities Act (other than a
registration statement on Form S-8) with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in any securities being registered
pursuant to any other registration statement filed by the Company
under the Securities Act.
In rendering such opinion, such counsel may (i) state that his opinion
is limited to the federal laws of the United States, the laws of the State of
Illinois, the State of New York and the General Corporation Law of the State of
Delaware and (ii) rely as to matters of fact upon certificates of officers of
the Company and its subsidiaries and of public officials; PROVIDED that such
counsel shall furnish copies thereof to the Representatives.
(f) The Company shall have furnished to the Representatives on the
Closing Date a letter of Ernst & Young LLP, addressed jointly to the Company and
the Underwriters and dated the Closing Date of the type described in the
American Institute of Certified Public Accountants' Statement on Auditing
Standards No. 72, and covering such additional financial statement items and
procedures (including a review of interim financial statements specified in the
American Institute of Certified Public Accountants' Statement on Auditing
Standards No. 71) as the Representatives may reasonably request and in form and
substance satisfactory to the Representatives.
(g) The Company shall have furnished to the Representatives a
certificate, dated the Closing Date, and on any later date, if any, on which
Option Securities are purchased, of its Chief Financial Officer or Treasurer and
its General Counsel or other counsel stating that:
(i) The representations and warranties of the Company in Section
2 of this Agreement are true and correct as of such date; the Company
has performed all of its agreements contained in this Agreement which
are required to be performed on or before the date of such certificate
and the conditions set forth in subsections 6(h) and (j) of this
Agreement have been fulfilled; and no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been
<PAGE>
13
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and
(ii) They have examined the Registration Statement and the
Prospectus and (A) as of the Effective Date, the Registration
Statement did not contain an untrue statement of a material fact and
did not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and, as of
the date of such certificate, the Prospectus does not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (B)
since the Effective Date no event has occurred which should have been
set forth in a supplement or amendment to the Registration Statement
or Prospectus which has not been set forth in such a supplement or
amendment.
(h)(i) Neither the Company nor any of its subsidiaries shall have
sustained, since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus and (ii) since such date there shall not
have been any material change in the capital stock or long-term debt of the
Company or any of its subsidiaries (otherwise than as set forth or
contemplated in the Prospectus or in a supplement thereto) or any change in
or affecting, or any adverse development which affects, the business,
business prospects, properties, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus, the effect
of which, in any such case described in clause (i) or (ii), is, in the
judgment of the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities being delivered on the Closing Date on the terms
and in the manner contemplated herein or in the Prospectus or in a
supplement thereto.
(i) Subsequent to the execution and delivery of the Terms Agreement
there shall not have occurred any of the following: (i) any material adverse
change in the financial markets in the United States, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change
or development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of
which is such as to make it, in the reasonable judgment of the
Representative(s), impracticable to market the Securities or to enforce
contracts for the sale of the Securities, or (ii) trading in any securities
of the Company has been suspended or materially limited by the Commission
or the New York Stock Exchange, or (iii) trading generally on the American
Stock Exchange, or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any
other governmental authority, or (iv) a banking moratorium has been
declared by either Federal or state authorities.
(j) Subsequent to the execution and delivery of the Terms Agreement,
(i) no downgrading shall have occurred in the rating accorded the Company's
debt securities by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of
Rule 436(g)(2) of the Rules and Regulations and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's
debt securities.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
<PAGE>
14
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Securities), to which that Underwriter or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon,(i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse each Underwriter and each such
controlling person for any legal or other expenses reasonably incurred by that
Underwriter or controlling person in connection with investigating or defending
or preparing to defend against any such loss, claim, damage, liability or action
as such expenses are incurred; PROVIDED, HOWEVER, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or on behalf
of any Underwriter specifically for inclusion therein; and PROVIDED FURTHER,
that as to any Preliminary Prospectus or supplement thereto this indemnity
agreement shall not inure to the benefit of any Underwriter or any person
controlling that Underwriter on account of any loss, claim, damage, liability or
action arising from the sale of Securities to any person by that Underwriter if
that Underwriter failed to send or give a copy of the Prospectus, as the same
may be amended or supplemented, to that person within the time required by the
Securities Act, and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in such
Preliminary Prospectus or supplement thereto was corrected in the Prospectus, as
determined by a court of competent jurisdiction, unless such failure resulted
from non-compliance by the Company with Section 4(c). For purposes of the
second proviso to the immediately preceding sentence, the term Prospectus shall
not be deemed to include the documents incorporated by reference therein, and no
Underwriter shall be obligated to send or give any supplement or amendment to
any document incorporated by reference in a Preliminary Prospectus or supplement
thereto or the Prospectus to any person other than a person to whom such
Underwriter has delivered such incorporated documents in response to a written
request therefor. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Underwriter or to any
controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, each of its directors (including any person who, with
his or her consent, is named in the Registration Statement as about to become a
director of the Company), each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of the Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Company or any
such director, officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon,(i) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company through
the Representatives by or on behalf of that Underwriter specifically for
inclusion therein, and shall reimburse the Company and any such director,
officer or controlling person for any legal or other expenses reasonably
incurred by the Company or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred.
The foregoing indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company or any such director, officer or
controlling person.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of any claim or the commencement of any action, if a claim in
respect thereof is to be made against the indemnifying party under this
<PAGE>
15
Section 7, the indemnified party shall notify the indemnifying party in writing
of the claim or the commencement of that action; PROVIDED, HOWEVER, that the
failure to notify the indemnifying party shall not relieve it from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 7. If any such claim or
action shall be brought against an indemnified party, and the indemnified party
shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, that
the Representatives shall have the right to employ counsel to represent jointly
the Representatives and those other Underwriters and their respective
controlling persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Underwriters against the Company
under this Section 7, if, in the reasonable judgment of the Representatives, if
there are legal defenses available to them which are different from or in
addition to those available to such indemnifying party (it being understood that
the Company shall not, in connection with any one such claim or action or
separate but substantially similar or related claims or actions in the same
jurisdiction arising out of the same allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm of attorneys
(other than local counsel which shall be engaged only for purposes of appearing
with such counsel in such jurisdictions in which such firm of attorneys is not
licensed to practice)), and in that event the fees and expenses of such separate
counsel shall be paid by the Company. Anything in this Section 7(c) to the
contrary notwithstanding, but subject to Section 7(d), an indemnifying party
shall not be liable for any settlement of any claim or action effected without
its written consent. No indemnifying party shall, without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section hereof unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of an indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 7(c) effected without its
written consent if (i) such settlement is entered into more than 60 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 45 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 7(a) or 7(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein (other than by
reason of the failure to give notice, as provided in the first sentence of
Section 7(c)), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Securities purchased under this
Agreement (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters with respect
to the Securities purchased under this Agreement, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault
<PAGE>
16
shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Underwriters, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 7(d) were to be determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to in this Section 7(d). The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7(d) shall be
deemed to include, for purposes of this Section 7(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public was offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 7(d) are several in proportion to their respective
underwriting obligations and not joint.
(f) The agreements contained in Sections 4(f), 4(g), 5 and this
Section 7 and the representations and warranties of the Company in Section 2 (as
made as of the date of this Agreement) shall survive the delivery of the
Securities and shall remain in full force and effect, regardless of any
termination or cancellation of the Terms Agreement incorporating the terms of
this Agreement or any investigation made by or on behalf of any indemnified
party.
8. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the
Underwriters shall fail at the Closing Date to purchase the Securities which it
or they are obligated to purchase under a Terms Agreement (the "Defaulted
Securities"), the Representatives shall have the right, but not the obligation,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms set forth in this Agreement and the Terms Agreement; if,
however, the Representatives shall not have completed such arrangements within
such 24-hour period, then this Agreement and the Terms Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have for damages caused by its default. If other underwriters
agree to purchase the Securities of a defaulting Underwriter, either the
Representatives or the Company may postpone the Closing Date for up to seven
full business days in order to effect any changes in the Registration Statement,
the Prospectus or any supplement thereto or in any other document or
arrangement.
9. EFFECTIVE DATE AND TERMINATION. The obligations of the
Underwriters under the Terms Agreement may be terminated by the Representatives
by notice given to and received by the Company prior to delivery of any payment
for the Securities if, prior to that time, the events described in any of
Section 6(h), 6(i) or 6(j) shall have occurred.
10. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) the Company
shall fail to tender the Securities for delivery to the Underwriters for any
reason permitted under this Agreement or the Terms Agreement or (b) the
Underwriters shall decline to purchase the Securities for any reason permitted
under this Agreement or the Terms Agreement (including the termination of the
Terms Agreement pursuant to Section 9), the Company shall reimburse the
Underwriters for the reasonable fees and expenses of their counsel and for such
other out-of-pocket expenses as shall have been reasonably incurred by them in
connection with the Terms Agreement and the proposed purchase of the Securities,
and upon demand the Company shall pay the full amount thereof to the
Representatives. If the Terms Agreement is terminated pursuant to Section 8 by
reason of the default of one or more Underwriters, the Company shall not be
obligated to reimburse any Underwriter on account of those expenses.
<PAGE>
17
11. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing and shall be deemed duly given if mailed or
transmitted by any standard form of telecommunication. Such notices shall be
directed as follows:
(a) if to the Underwriters, to their addresses furnished to the
Company in writing for the purpose of communications hereunder;
(b) if to the Company, to the address of the Company set forth in the
Registration Statement, Attention: General Counsel;
PROVIDED, HOWEVER, that any notice to an Underwriter pursuant to Section 7(c)
shall be given to such Underwriter at its address set forth in its acceptance
telex to the Representatives, which address will be supplied to any other party
hereto by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. The Terms Agreement
(including the provisions of this Agreement) shall inure to the benefit of and
be binding upon the Underwriters and the Company and their respective
successors. The Terms Agreement (including the provisions of this Agreement)
are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement also shall be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Securities Act and (B) the indemnity agreement of the Underwriters contained
in Section 7(b) of this Agreement shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 12, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained in this Agreement. No
purchaser of Securities from any Underwriter shall be deemed to be a successor
solely by reason of such purchase.
13. DEFINITION OF THE TERM "BUSINESS DAY". For purposes of this
Agreement, "business day" means any day on which the NYSE is open for trading.
14. GOVERNING LAW. This Agreement and the Terms Agreement shall be
governed by and construed in accordance with the laws of New York (without
giving effect to the principles of choice of law).
15. COUNTERPARTS. The Terms Agreement may be executed in
counterparts and each such counterpart shall be deemed to be an original but all
such counterparts shall together constitute one and the same instrument.
16. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
<PAGE>
ANNEX I
(Three copies of this Delayed Delivery Contract should be signed and returned to
the address shown below so as to arrive not later than 9:00 A.M., New York time,
on , 19 *.)
DELAYED DELIVERY CONTRACT
[Insert date of
initial public
offering]
IMC GLOBAL INC.
c/o [Name and address
of Underwriter[s]]
Gentlemen:
The undersigned hereby agrees to purchase from IMC GLOBAL INC., a
Delaware corporation ("Company"), and the Company agrees to sell to the
undersigned, [IF ONE DELAYED CLOSING, INSERT---as of the date hereof, for
delivery on __________________, 19__ ("Delivery Date"),]
[$]________________
principal amount of the Company's [INSERT TITLE OF SECURITIES] ("Securities"),
offered by the Company's Prospectus dated ___________________, 19__ and a
Prospectus Supplement dated_____________, 19__, relating thereto, receipt of
copies of which is hereby acknowledged, at __% of the principal amount thereof
plus accrued interest from ________________, 19__, if any, and on the further
terms and conditions set forth in this Delayed Delivery Contract ("Contract").
[IF TWO OR MORE DELAYED CLOSINGS, INSERT THE FOLLOWING:
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the principal amounts
set forth below:
Delivery Date Principal Amount
- ------------- ----------------
[$]
- ------------------------ -------------
[$]
- ------------------------ -------------
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on [the] [each] Delivery Date shall be made to the Company or its
order by certified or official bank check in [New York Clearing House (next
day)] funds at the office of _____________________ at 10:00 A.M. on the
Delivery Date upon delivery to the undersigned of the Securities to be purchased
by the undersigned for delivery on such Delivery Date in definitive fully
registered form and in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to such Delivery Date.
- ---------------------------------
*/ Insert date which is third full business day prior to Closing Date under
the Terms Agreement.
<PAGE>
2
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on [ the] [each] Delivery Date
shall be subject only to the conditions that (1) investment in the Securities
shall not at -such Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below, notice
to such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
----------------------------------------
(Name of purchaser)
By
-------------------------------------
(Title of Signatory)
----------------------------------------
----------------------------------------
(Address of Purchaser)
Accepted, as of the above date,
IMC GLOBAL INC.
By
----------------------------
Name:
Title:
<PAGE>
ANNEX II (A)
IMC GLOBAL INC.
("Company")
Debt Securities
TERMS AGREEMENT
___________,19__
IMC Global Inc.
2100 Sanders Road
Northbrook, Illinois 60062
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A hereto and
for their respective accounts, we] [We] offer to purchase, on and subject to the
terms and conditions of the Underwriting Agreement Basic Provisions of the
Company attached hereto (the "Underwriting Agreement"), the following securities
("Securities") to be issued under an indenture, dated ________, 19__, between
the Company and _______________, as Trustee, on the following terms:
TITLE: [ %] [Floating Rate] [Senior] [Subordinated] [Notes] [Debentures]
Due ___
PRINCIPAL AMOUNT: [$]
INTEREST: [ % per annum, from , 19 , payable semiannually on
and commencing , 19 , to holders of record on the
preceding or , as the case may be.] [Zero
coupon]
MATURITY: , 19 .
OPTIONAL REDEMPTION:
SINKING FUND:
PERIOD DESIGNATED PURSUANT TO SECTION 4(g) OF THE UNDERWRITING AGREEMENT:
__ years.
PERIOD DESIGNATED PURSUANT TO SECTION 4(i) OF THE UNDERWRITING AGREEMENT:
__ days.
[CONVERSION PROVISIONS]:
[Other Terms]
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be
, 19 . Underwriters' fee is % of the principal amount of the Contract
Securities.]
PURCHASE PRICE: % of principal amount, plus accrued interest [, if any,]
from _________, 19__ .
EXPECTED REOFFERING PRICE: % of principal amount, subject to change by
the undersigned.
<PAGE>
2
CLOSING DATE: A.M. on , 19 , at __________________
in New York [Clearing House (next day)] [Federal (same-day)] funds.
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:]
The respective principal amounts of the Securities to be purchased by each of
the Underwriters are set forth opposite their names in Schedule A hereto.
[IF APPROPRIATE, INSERT--It is understood that we may, with your
consent, amend this offer to add additional Underwriters and reduce the
aggregate principal amount to be purchased by the Underwriters listed in
Schedule A hereto by the aggregate principal amount to be purchased by such
additional Underwriters.]
The significant subsidiaries (as defined in Rule 405 under the
Securities Act of 1933) of the Company are as follows:
The provisions of the Underwriting Agreement are incorporated herein
by reference [IF APPROPRIATE, INSERT--, except that the obligations and
agreements set forth in Section 8 ("Defaulting Underwriters") of the
Underwriting Agreement shall not apply to the obligations of the Underwriters to
purchase the above Securities].
The Securities will be made available for checking and packaging at
the office of _______________ at least 24 hours prior to the Closing Date.
This Terms Agreement may be executed in counterparts, all of which
together shall constitute one and the same instrument.
[Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.]
<PAGE>
3
[Please signify your acceptance of the foregoing by return wire not
later than P.M. today.]
Very truly yours,
[Insert name(s) of Representatives
or Underwriters] [On behalf of
[themselves][itself] and as
Representative[s] of the Several]
[As] Underwriters[s]
[By [Name of Representative]]
By
------------------------------
Name:
Title:
Accepted as of the date above
IMC Global Inc.
By:
-------------------------------
Name:
Title:
<PAGE>
SCHEDULE A
Principal
Underwriter Amount
----------- -------
--------------
Total. . . . . . . . . . . . . . . . . . . . . . . [$]
<PAGE>
ANNEX II (B)
IMC GLOBAL INC.
("Company")
Equity Securities
TERMS AGREEMENT
,19__
IMC Global Inc.
2100 Sanders Road
Northbrook, Illinois 60062
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A hereto and
for their respective accounts, we] [We] offer to purchase, on and subject to the
terms and conditions of the Underwriting Agreement Basic Provisions of the
Company attached hereto (the "Underwriting Agreement"), the following securities
("Securities") on the following terms:
TITLE: [Common Stock] [Preferred Stock, Series ______]
NUMBER OF SHARES TO BE ISSUED: [______ shares]
[For Preferred Stock:
VOTING RIGHTS:
PREFERRED STOCK DIVIDENDS: [cash dividends of $ to $ per
share payable quarterly in arrears on _____ __, ______ __, _______ __
and _______ __.]
OPTIONAL REDEMPTION:
MANDATORY REDEMPTION/SINKING FUND:
LIQUIDATION PREFERENCE: [$ per share plus ].
NAME OF EXCHANGE OR MARKET: [New York Stock Exchange] [NASDAQ
National Market System] [American Stock Exchange]
PERIOD DESIGNATED PURSUANT TO SECTION 4(g) OF THE UNDERWRITING
AGREEMENT: years.
PERIOD DESIGNATED PURSUANT TO SECTION 4(i) OF THE UNDERWRITING
AGREEMENT: ___ days.
[CONVERSION PROVISIONS]:
[Other Terms]
PRICE TO PUBLIC: $_________ per share
<PAGE>
2
UNDERWRITING DISCOUNTS AND COMMISSION:
PROCEEDS TO COMPANY:
OVER-ALLOTMENT OPTION:
CLOSING DATE: A.M. on , 19 , at
_______________ in New York [Clearing House (next day)] [Federal
(same-day)] funds.
NAME OF TRANSFER AGENT AND REGISTRAR:
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:]]
[For Common Stock:
NAME OF EXCHANGE OR MARKET: [New York Stock Exchange] [NASDAQ
National Market System] [American Stock Exchange]
PERIOD DESIGNATED PURSUANT TO SECTION 4(g) OF THE UNDERWRITING
AGREEMENT: years.
-----
PERIOD DESIGNATED PURSUANT TO SECTION 4(i) OF THE UNDERWRITING
AGREEMENT: ___ days.
[Other Terms]
PRICE TO PUBLIC: $______________ per share
UNDERWRITING DISCOUNTS AND COMMISSION:
PROCEEDS TO COMPANY:
OVER-ALLOTMENT OPTION:
CLOSING DATE: A.M. on , 19 , at
_______________ in New York [Clearing House (next day)] [Federal
(same-day)] funds.
NAME OF TRANSFER AGENT AND REGISTRAR:
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:]]
The respective shares of the Securities to be purchased by each
of the Underwriters are set forth opposite their names in Schedule A
hereto.
[IF APPROPRIATE, INSERT--It is understood that we may, with your
consent, amend this offer to add additional Underwriters and reduce
the number of shares to be purchased by the Underwriters listed in
Schedule A hereto by the number of shares to be purchased by such
additional Underwriters.]
The significant subsidiaries (as defined in Rule 405 under
the Securities Act of 1933) of the Company are as follows:
The provisions of the Underwriting Agreement are
incorporated herein by reference [IF APPROPRIATE, INSERT--, except
that the obligations and agreements set forth in Section 8
("Defaulting Underwriters") of the Underwriting Agreement shall not
apply to the obligations of the Underwriters to purchase the above
Securities].
The Securities will be made available for checking and
packaging at the office of at least 24 hours prior to
the Closing Date.
<PAGE>
3
[Please signify your acceptance of our offer by signing the
enclosed response to us in the space provided and returning it to us.]
[Please signify your acceptance of the foregoing by return
wire not later than P.M. today.]
Very truly yours,
[Insert name(s) of Representatives
or Underwriters] [On behalf of
[themselves][itself] and as
Representative[s] of the Several]
[As] Underwriters[s]
[By [Name of Representative]]
By
------------------------------
Name:
Title:
Accepted as of the above date
IMC Global Inc.
By:
-----------------------------
Name:
Title:
<PAGE>
SCHEDULE A
Number of
Underwriter Shares
----------- --------
---------
Total. . . . . . . . . . . . . . . . . . . . . . . [$]
---------
---------
<PAGE>
IMC GLOBAL INC.
("Company")
Debt Securities
TERMS AGREEMENT
July 17, 1997
IMC Global Inc.
2100 Sanders Road
Northbrook, Illinois 60062
Ladies and Gentlemen:
On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we offer to purchase, on and
subject to the terms and conditions of the Underwriting Agreement
Basic Provisions of the Company attached hereto (the "Underwriting
Agreement"), the following securities ("Securities") to be issued
under an Indenture, dated as of July 17, 1997, between the Company and
The Bank of New York, as Trustee, on the following terms:
TITLE: 6 7/8% Debentures Due July 15, 2007
PRINCIPLE AMOUNT: $150,000,000
INTEREST: 6 7/8% per annum, from July 22, 1997, payable
semiannually on January 15 and July 15, commencing January 15, 1998,
to holders of record on the preceding January 1 or July 1, as the case
may be.
MATURITY: July 15, 2007.
OPTIONAL REDEMPTION: None
SINKING FUND: None
PERIOD DESIGNATED PURSUANT TO SECTION 4(g) OF THE UNDERWRITING
AGREEMENT: None.
CONVERSION PROVISIONS: None
DELAYED DELIVERY CONTRACTS: None.
PURCHASE PRICE: 99.17% of principal amount, plus accrued
interest, if any, from July 22, 1997.
EXPECTED REOFFERING PRICE: 99.82% of principal amount, subject
to change by the Underwriters.
CLOSING DATE: 9:00 A.M. on July 22, 1997, at the offices of
Sidley & Austin in Chicago in Federal (same-day) funds.
<PAGE>
NAME AND ADDRESS OF REPRESENTATIVES:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Merrill Lynch World Headquarters
World Financial Center - North Tower
New York, New York 10281
J.P. Morgan & Co.
60 Wall Street
New York, New York 10260
Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
The respective principal amounts of the Securities to be purchased by
each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The significant subsidiaries (as defined in Rule 405 under
the Securities Act of 1933) of the Company are as follows:
IMC Global Operations Inc.
IMC-Agrico MP, Inc.
IMC Kalium Ltd.
International Minerals & Chemical (Canada) Global Limited
IMC Kalium Canada Ltd.
IMC Kalium Carlsbad Potash Company
IMC AgriBusiness Inc.
The Vigoro Corporation
The provisions of the Underwriting Agreement are
incorporated herein by reference.
This Terms Agreement may be executed in counterparts, all of
which together shall constitute one and the same instrument.
* * * * *
-2-
<PAGE>
Very truly yours,
Merrill Lynch & Co.
Merrill Lynch, Pierce,
Fenner & Smith Incorporated
J.P. Morgan Securities Inc.
Salomon Brothers Inc
By: Merrill Lynch & Co.
Merrill Lynch, Pierce,
Fenner & Smith Incorporated
By /s/ Henry James O'Neill
---------------------------------
Name: Henry James O'Neill
Title: Vice President
Agreed and accepted as of the
date written above
IMC Global Inc.
By: /s/ Eileen A. Kamerick
-----------------------------
Name: Eileen A. Kamerick
Title: Vice President and Treasurer
-3-
<PAGE>
SCHEDULE A
Principal
Underwriter Amount
----------- ----------
Merrill Lynch, Pierce, Fenner & Smith Incorporated $ 50,000,000
J.P. Morgan Securities Inc. $ 50,000,000
Salomon Brothers Inc $ 50,000,000
--------------
Total. . . . . . . . . . . . . . . . . . . . . $150,000,000
<PAGE>
IMC GLOBAL INC.,
ISSUER
INDENTURE
DATED AS OF JULY 17, 1997
THE BANK OF NEW YORK,
TRUSTEE
PROVIDING FOR THE ISSUANCE OF
SENIOR DEBT SECURITIES IN SERIES
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. DEFINITIONS............................................... 1
Section 1.2. OTHER DEFINITIONS.........................................12
Section 1.3. INCORPORATION BY REFERENCE OF TRUST
INDENTURE ACT.............................................12
Section 1.4. RULES OF CONSTRUCTION.....................................13
ARTICLE II THE SECURITIES
Section 2.1. TERMS AND FORMS...........................................14
Section 2.2. EXECUTION AND AUTHENTICATION..............................19
Section 2.3. REGISTRAR, PAYING AGENT, CONVERSION AGENT,
DEPOSITORY AND SECURITIES CUSTODIAN.......................22
Section 2.4. SECURITYHOLDER LISTS......................................23
Section 2.5. TRANSFER, REGISTRATION AND EXCHANGE.......................23
Section 2.6. REPLACEMENT SECURITIES....................................27
Section 2.7. OUTSTANDING SECURITIES....................................28
Section 2.8. TREASURY SECURITIES.......................................29
Section 2.9. TEMPORARY SECURITIES......................................29
Section 2.10. SECURITIES IN GLOBAL FORM.................................30
Section 2.11. CANCELLATION..............................................30
Section 2.12. DEFAULTED INTEREST........................................30
Section 2.13. PERSONS DEEMED OWNERS.....................................31
Section 2.14. CUSIP NUMBERS.............................................32
ARTICLE III REDEMPTION
Section 3.1. APPLICABILITY OF ARTICLE..................................32
Section 3.2. NOTICES TO TRUSTEE........................................32
Section 3.3. SELECTION OF SECURITIES TO BE REDEEMED....................33
Section 3.4. NOTICE OF REDEMPTION......................................34
Section 3.5. EFFECT OF NOTICE OF REDEMPTION............................35
Section 3.6. DEPOSIT OF REDEMPTION PRICE...............................36
Section 3.7. SECURITIES REDEEMED IN PART...............................37
ARTICLE IV COVENANTS
Section 4.1. PAYMENT OF SECURITIES.....................................37
Section 4.2. MAINTENANCE OF OFFICE OR AGENCY FOR
NOTICES AND DEMANDS.......................................38
Section 4.3. MONEY FOR SECURITIES PAYMENTS TO BE HELD
IN TRUST..................................................40
Section 4.4. COMMISSION REPORTS; REPORTS TO TRUSTEE;
-i-
<PAGE>
PAGE
REPORTS TO HOLDERS........................................41
Section 4.5. COMPLIANCE CERTIFICATES...................................43
Section 4.6. CORPORATE EXISTENCE.......................................43
Section 4.7. LIMITATION ON LIENS.......................................43
Section 4.8. LIMITATIONS ON SALE AND LEASEBACK TRANSACTIONS............44
Section 4.9. EXEMPTED INDEBTEDNESS.....................................45
Section 4.10. WAIVER OF STAY; EXTENSION OF USURY LAWS...................45
ARTICLE V SUCCESSORS
Section 5.1. WHEN COMPANY MAY MERGE, ETC...............................45
Section 5.2. SUCCESSOR CORPORATION SUBSTITUTED.........................46
ARTICLE VI DEFAULTS AND REMEDIES
Section 6.1. EVENTS OF DEFAULT.........................................47
Section 6.2. ACCELERATION..............................................48
Section 6.3. OTHER REMEDIES............................................49
Section 6.4. WAIVER OF PAST DEFAULTS...................................50
Section 6.5. CONTROL BY MAJORITY.......................................50
Section 6.6. LIMITATION ON SUITS BY HOLDERS............................50
Section 6.7. RIGHTS OF HOLDERS TO RECEIVE PAYMENT......................51
Section 6.8. COLLECTION SUIT BY TRUSTEE................................51
Section 6.9. TRUSTEE MAY FILE PROOFS OF CLAIM..........................52
Section 6.10. APPLICATION OF MONEY COLLECTED............................52
Section 6.11. UNDERTAKING FOR COSTS.....................................53
Section 6.12. DISCONTINUANCE OR ABANDONMENT OF
PROCEEDINGS...............................................54
ARTICLE VII TRUSTEE
Section 7.1. DUTIES OF TRUSTEE.........................................54
Section 7.2. RIGHTS OF TRUSTEE.........................................56
Section 7.3. INDIVIDUAL RIGHTS OF TRUSTEE..............................57
Section 7.4. TRUSTEE'S DISCLAIMER......................................57
Section 7.5. NOTICE OF DEFAULTS........................................57
Section 7.6. REPORTS BY TRUSTEE TO HOLDERS.............................58
Section 7.7. COMPENSATION AND INDEMNITY................................58
Section 7.8. REPLACEMENT OF TRUSTEE....................................59
Section 7.9. SUCCESSOR TRUSTEE BY MERGER...............................61
Section 7.10. ELIGIBILITY; DISQUALIFICATION.............................61
Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY...................................................61
Section 7.12. MONEY HELD IN TRUST.......................................61
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PAGE
ARTICLE VIII DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.1. DISCHARGE OF INDENTURE; DEFEASANCE........................61
Section 8.2. CONDITIONS TO DEFEASANCE..................................62
Section 8.3. APPLICATION OF TRUST MONEY................................64
Section 8.4. REPAYMENT TO COMPANY......................................64
Section 8.5. REINSTATEMENT OF COMPANY'S OBLIGATIONS....................65
ARTICLE IX AMENDMENTS AND WAIVERS
Section 9.l. WITHOUT CONSENT OF HOLDERS................................66
Section 9.2. WITH CONSENT OF HOLDERS...................................67
Section 9.3. COMPLIANCE WITH TRUST INDENTURE ACT.......................68
Section 9.4. REVOCATION AND EFFECT OF CONSENTS AND
WAIVERS...................................................68
Section 9.5. NOTATION ON OR EXCHANGE OF SECURITIES.....................69
Section 9.6. TRUSTEE TO SIGN AMENDMENTS................................69
ARTICLE X REPAYMENT AT THE OPTION OF HOLDERS
Section 10.1. APPLICABILITY OF ARTICLE..................................70
ARTICLE XI SINKING FUNDS
Section 11.1. APPLICABILITY OF ARTICLE..................................71
Section 11.2. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES................................................71
SECTION 11.3. REDEMPTION OF SECURITIES FOR SINKING
FUND......................................................72
ARTICLE XII CONVERSION OF SECURITIES
Section 12.1. APPLICABILITY OF ARTICLE..................................73
Section 12.2. EXERCISE OF CONVERSION PRIVILEGE..........................73
Section 12.3. FRACTIONAL INTERESTS......................................75
Section 12.4. ADJUSTMENT OF CONVERSION PRICE............................76
Section 12.5. CONTINUATION OF CONVERSION PRIVILEGE IN
CASE OF MERGER, CONSOLIDATION OR SALE OF
ASSETS....................................................79
Section 12.6. NOTICE OF CERTAIN EVENTS..................................81
Section 12.7. TAXES ON CONVERSION.......................................82
Section 12.8. COMPANY TO PROVIDE STOCK..................................82
Section 12.9. DISCLAIMER OF RESPONSIBILITY FOR CERTAIN
MATTERS...................................................83
Section 12.10. RETURN OF FUNDS DEPOSITED FOR REDEMPTION
OF CONVERTED SECURITIES...................................84
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PAGE
Section 12.11. RIGHTS ISSUED IN RESPECT OF COMMON STOCK
ISSUED UPON CONVERSION....................................84
ARTICLE XIII MISCELLANEOUS
Section 13.1. TRUST INDENTURE ACT CONTROLS..............................84
Section 13.2. NOTICES...................................................85
Section 13.3. COMMUNICATION BY HOLDERS WITH OTHER
HOLDERS...................................................86
Section 13.4. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT.................................................86
Section 13.5. STATEMENTS REQUIRED IN CERTIFICATE OR
OPINION...................................................86
Section 13.6. RULES BY TRUSTEE AND AGENTS...............................87
Section 13.7. LEGAL HOLIDAYS............................................87
Section 13.8. NO RECOURSE AGAINST OTHERS................................87
Section 13.9. GOVERNING LAW.............................................88
Section 13.10. NO ADVERSE INTERPRETATION OF OTHER
AGREEMENTS................................................88
Section 13.11. SUCCESSORS................................................88
Section 13.12. SEVERABILITY..............................................88
Section 13.13. MULTIPLE ORIGINALS........................................88
Section 13.14. TABLE OF CONTENTS; HEADINGS...............................88
Section 13.15. SECURITIES IN FOREIGN CURRENCIES..........................88
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<PAGE>
CROSS-REFERENCE TABLE
TIA SECTION INDENTURE SECTION
310(a)(1) . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . 7.8, 7.10
(c) . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . 2.4
(b) . . . . . . . . . . . . . . . . . . . . 13.3
(c) . . . . . . . . . . . . . . . . . . . . 13.3
313(a) . . . . . . . . . . . . . . . . . . . . 7.6
(b)(1) . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . 7.6
(c) . . . . . . . . . . . . . . . . . . . . 7.6
(d) . . . . . . . . . . . . . . . . . . . . 4.4, 4.5, 13.2
314(a) . . . . . . . . . . . . . . . . . . . . 4.4
(b) . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . 13.4
(c)(2) . . . . . . . . . . . . . . . . . . . 13.4
(c)(3) . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . 13.5
(f) . . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . . . 7.1(b)
(b) . . . . . . . . . . . . . . . . . . . . 7.5
(c) . . . . . . . . . . . . . . . . . . . . 7.1(a)
(d) . . . . . . . . . . . . . . . . . . . . 7.1(c)
(e) . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(Last Sentence) . . . . . . . . . . . . . . 2.8
(a)(1)(A) . . . . . . . . . . . . . . . . . . 6.5
(a)(1)(B) . . . . . . . . . . . . . . . . . . 6.4
(a)(2) . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . 6.7
317(a)(1) . . . . . . . . . . . . . . . . . . . . 6.8
(a)(2) . . . . . . . . . . . . . . . . . . . 6.9
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(b) . . . . . . . . . . . . . . . . . . . . 4.3
318(a) . . . . . . . . . . . . . . . . . . . . 13.1
N.A. means not applicable.
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<PAGE>
INDENTURE dated as of July 17, 1997 between IMC GLOBAL INC., a
Delaware corporation (the "Company"), and The Bank of New York, a New York
banking corporation (the "Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Company's Securities
issued hereunder:
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.1. DEFINITIONS.
"Additional Amounts" means any additional amounts which are required
by a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes imposed
on certain Holders, or as otherwise specified in the terms of a Security
established pursuant to Section 2.1, and which are owing to such Holders.
"Affiliate" shall mean another Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such first Person. For the purposes of this definition, "control," (including,
with correlative meanings, the terms "controlling," "controlled by" and "under
common control with"), as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of that Person, whether through the ownership of voting securities
or by contract or otherwise. The Trustee may request and conclusively rely on
an Officers' Certificate to determine whether any Person is an Affiliate of the
Company.
"Agent" shall mean any Registrar or Paying Agent or authenticating
agent or co-registrar.
"Authorized Newspaper" means a newspaper printed in the official
language of the country of publication and customarily published at least once a
day on each Business Day in each calendar week and of general circulation in New
<PAGE>
York, New York or in any other place as required in this Indenture, whether or
not such newspaper is published on Legal Holidays, or, with respect to the
Securities of any series, such other newspaper(s) as may be specified in or
pursuant to the Board Resolution of the Company or supplement to this Indenture
pursuant to which such series of Securities is issued. Whenever, under the
provisions of this Indenture or such Board Resolution, two or more publications
of a notice or other communication are required or permitted, such publications
may be in the same or different newspapers. If, because of temporary or
permanent suspension of publication or general circulation of any newspaper or
for any other reason, it is impossible or impracticable to publish any notices
required by this Indenture or a Board Resolution in the manner provided, then
such publication in lieu thereof or such other notice as shall be made with the
approval of the Trustee shall constitute a sufficient publication of such
notice.
"Bankruptcy Law" shall mean Title 11, United States Code or any
similar federal or state law for the relief of debtors.
"Bearer Security" means any security in the form established pursuant
to Section 2.1 hereunder which is payable to bearer.
"Board" or "Board of Directors" shall mean the Board of Directors of
the Company or any authorized committee of such Board.
"Board Resolution" means a copy of the resolutions certified by the
Secretary or an Assistant Secretary of the Company as properly adopted by the
Board of Directors of the Company and in full force and effect and delivered to
the Trustee.
"Business Day" shall mean each day that is not a Legal Holiday.
"Capitalized Lease Obligation" shall mean an obligation that is
required to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
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<PAGE>
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with such principles; and the Stated
Maturity thereof shall be the date of the last payment of rent or any other
amount due under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty.
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" shall mean the common stock, $1.00 par value per share,
of the Company.
"Company" shall mean IMC Global Inc., a Delaware corporation, until a
successor replaces it in accordance with Article V and, thereafter, means the
successor and, for purposes of any provision contained herein and required by
the TIA, each other obligor on the indenture securities.
"Company Request" or "Company Order" shall mean a written request or
order signed in the name of the Company by the Chairman of the Board, the
President, the Chief Financial Officer or the Treasurer thereof or any other
officer specifically authorized to act by the Board of Directors of the Company,
and delivered to the Trustee.
"Consolidated Net Worth" shall mean the excess of assets over
liabilities of the Company and its consolidated Subsidiaries, plus Minority
Interests, as determined from time to time in accordance with GAAP.
"consolidation" shall mean, with respect to any Person, the
consolidation of the accounts of such Person if and to the extent the accounts
of such Person and each of its Subsidiaries (or, if such Person is the Company,
its Restricted Subsidiaries) would normally be consolidated with those of such
Person, all in accordance with GAAP. The term "consolidated" shall have a
similar meaning.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 13.2 or such other address as the Trustee may give
to the Company.
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<PAGE>
"coupon" shall mean any interest coupon appertaining to a Bearer
Security.
"Currency Agreement" shall mean any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect such Person or any of its Restricted Subsidiaries against fluctuations
in currency values.
"Default" shall mean any event that is, or after notice or passage of
time or both would be, an Event of Default as defined in Section 6.1 of this
Indenture.
"Depository" or "U.S. Depository" shall mean, with respect to the
Securities of any series issuable or issued in whole or in part in the form of
one or more global Securities, the Person designated as U.S. Depository pursuant
to Section 2.1, which must be a clearing agency registered under the Exchange
Act, and, if so provided pursuant to Section 2.1 with respect to the Securities
of any series, any successor to such Person. If at any time there is more than
one such Person, "Depository" or "U.S. Depository" shall mean, with respect to
any series of Securities, the qualifying entity which has been appointed with
respect to the Securities of that series.
"Eligible Obligations" shall mean obligations as a result of the
deposit of which (along with the simultaneous deposit, if any, of money or U.S.
Government obligations or both) the Securities will be rated in the highest
generic long-term debt rating category assigned by one or more nationally
recognized rating agencies to debt with respect to which the issuer thereof has
been released from its obligations to the same extent that the Company has been
released from its obligations under this Indenture pursuant to the defeasance
provision of this Indenture.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"GAAP" shall mean generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
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<PAGE>
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, consistently applied, that are applicable to the
circumstances as of the date of determination; PROVIDED, that for purposes of
calculating the Consolidated Net Worth of a Person (including all components
thereof), "GAAP" shall mean such generally accepted accounting principles as
described above in effect on the date of this Indenture.
"Holder," "Securityholders" or "Holders of Securities" or other
similar term shall mean, with respect to a Registered Security, the person in
whose name a particular Security shall be registered on the books of the
Registrar kept for that purpose in accordance with the terms hereof and, with
respect to a Bearer Security or any coupon, the bearer thereof, and the word
"majority," used in connection with the term "Holder," "Securityholders" or
"Holder of Securities" or other similar term, shall signify the "majority in
principal amount" whether or not so expressed.
"IMC" shall mean IMC Global Operations, Inc., a Delaware corporation
and a wholly-owned subsidiary of the Company.
"IMC-Canada" shall mean International Minerals & Chemical Corporation
(Canada) Limited, a corporation organized under the laws of Canada and a
wholly-owned subsidiary of the Company.
"incur" shall mean, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "incurrence," "incurred," "incurrable," and "incurring"
shall have meanings correlative to the foregoing); PROVIDED, that a change in
GAAP that results in an obligation of such Person that exists at such time
becoming Indebtedness shall not be deemed an incurrence of such Indebtedness.
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<PAGE>
"Indebtedness" shall mean, with respect to any Person, at any date,
any of the following, without duplication, (i) any liability, contingent or
otherwise, of such Person (A) for borrowed money (whether or not the recourse of
the lender is to the whole of the assets of such Person or only to a portion
thereof), (B) evidenced by a note, bond, debenture or similar instrument or (C)
for the payment of money relating to a Capitalized Lease Obligation or other
obligation (whether issued or assumed) relating to the deferred purchase price
of property; (ii) all conditional sale obligations and all obligations under any
title retention agreement (even if the rights and remedies of the seller under
such agreement in the event of default are limited to repossession or sale of
such property), but excluding trade accounts payable arising in the ordinary
course of business; (iii) all obligations for the reimbursement of any obligor
on any letter of credit, banker's acceptance or similar credit transaction other
than entered into in the ordinary course of business; (iv) all indebtedness of
others secured by (or for which the holder of such indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on any asset or
property (including, without limitation, leasehold interests and any other
tangible or intangible property) of such Person, whether or not such
indebtedness is assumed by such Person or is not otherwise such Person's legal
liability; PROVIDED, that if the obligations so secured have not been assumed in
full by such Person or are otherwise not such Person's legal liability in full,
the amount of such indebtedness for the purposes of this definition shall be
limited to the lesser of the amount of such indebtedness secured by such Lien or
the fair market value of the assets of the property securing such Lien; (v) all
indebtedness of others (including all interest and dividends on any Indebtedness
or preferred stock of any other Person for the payment of which is) guaranteed,
directly or indirectly, by such Person or that is otherwise its legal liability
or which such Person has agreed to purchase or repurchase or in respect of which
such Person has agreed contingently to supply or advance funds; and (vi)
obligations in respect of Currency Agreements and Interest Swap Obligations.
"Indenture" shall mean this Indenture as amended or supplemented from
time to time.
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<PAGE>
"Interest Swap Obligations" shall mean the obligations of any Person
pursuant to any interest rate swap agreement, interest rate collar agreement or
other similar agreement or arrangement designed to protect such Person or any of
its Subsidiaries against fluctuations in interest rates.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986,
as amended from time to time, or any successor federal income tax laws.
"Issue Date" shall mean the first date on which a Security is
authenticated by the Trustee pursuant to this Indenture.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on which
banking institutions are not required to be open in the City of or in a state
where a Place of Payment is located.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien, charge or adverse claim affecting title or resulting in an
encumbrance against real or personal property or a security interest of any kind
(including, without limitation, any conditional sale or other title retention
agreement or lease in the nature thereof or any filing or agreement to file a
financing statement as debtor under the Uniform Commercial Code or any similar
statute other than to reflect ownership by a third party or property leased to
the Company or any of its Subsidiaries under a lease that is not in the nature
of a conditional sale or title retention agreement).
"Maturity" when used with respect to any Security shall mean 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 Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Minority Interest" shall mean any shares of stock of any class of a
Subsidiary that are not owned by the Company or a Subsidiary.
-7-
<PAGE>
"Officer" shall mean the Chairman of the Board of Directors, the Vice
Chairman, the President, the Treasurer, any Assistant Treasurer, Controller,
Secretary, Assistant Secretary, or any Vice President (including any Executive
Vice President or any Senior Vice President) of the Company.
"Officers' Certificate" shall mean, with respect to any Person, a
certificate signed by the Chairman of the Board of Directors, the Vice Chairman,
the President or any Vice President (including any Executive Vice President or
any Senior Vice President) and by the Treasurer or any Assistant Treasurer or
the Secretary or any Assistant Secretary of such Person that shall comply with
applicable provisions of this Indenture.
"Opinion of Counsel" shall mean an opinion in writing signed by a
Person's legal counsel (who may be an employee of or counsel to such Person or
the Trustee) who is acceptable to the Trustee.
"Original Issue Discount Security" shall mean any Security which
provides that an amount less than its principal amount is due and payable upon
the acceleration of the maturity thereof after an Event of Default.
"Partnership" shall mean IMC-Agrico Company, a Delaware general
partnership.
"Periodic Offering" shall mean an offering of Securities of a series
from time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the maturity or
maturities thereof, the original issue date or dates thereof, the redemption
provisions, if any, and any other terms specified as contemplated by Section 2.1
with respect thereto, are to be determined by the Company, or one or more of the
Company's agents designated in an Officers' Certificate, upon the issuance of
such Securities.
"Permitted Liens" shall mean, with respect to any Person:
(i) Liens existing on the Issue Date;
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<PAGE>
(ii) Liens on property or assets of, or any shares of stock of or
secured debt of, any corporation existing at the time such corporation
becomes a Restricted Subsidiary of the Company or at the time such
corporation is merged into the Company or any of its Restricted
Subsidiaries;
(iii) Liens in favor of the Company or any of its Restricted
Subsidiaries;
(iv) Liens in favor of governmental bodies to secure progress or
advance payments;
(v) Liens securing industrial revenue or pollution control bonds;
(vi) Liens on Property to secure Indebtedness incurred for the purpose
of (i) financing all or any part of the purchase price of such Property
incurred prior to, at the time of, or within 180 days after, the
acquisition of such property or assets or (ii) financing all or any part of
the cost of construction, improvement, development or expansion of any such
Property;
(vii) Statutory liens or landlords', carriers', warehouseman's,
mechanics', suppliers', materialmen's, repairmen's or other like Liens
arising in the ordinary course of business and with respect to amounts not
yet delinquent or being contested in good faith by appropriate proceedings,
if a reserve or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made therefor;
(viii) Liens on current assets of Restricted Subsidiaries securing
Indebtedness of such Restricted Subsidiaries; and
(ix) any extensions, substitutions, replacements or renewals in whole
or in part of a Lien (an "existing Lien") enumerated in clauses (i) through
(viii) above; PROVIDED, that the Lien may not extend beyond (A) the
Property or Indebtedness subject to the existing Lien and (B) improvements
and construction on such Property
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<PAGE>
and the Indebtedness secured by the Lien may not exceed the Indebtedness
secured at the time by the existing Lien.
"Person" shall mean any individual, corporation, partnership, limited
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof, or any other entity.
"Place of Payment" when used with respect to the Securities of any
series, means the place or places where the principal of and interest and any
Additional Amounts on the Securities of that series are payable as specified as
provided pursuant to Section 2.1.
"principal" of a debt security (including the Securities) shall mean
the principal of the security plus the premium, if any, payable on the security
which is due or overdue or is to become due at the relevant time.
"Principal Property" shall mean any manufacturing plant or warehouse
owned or leased by the Company or any Subsidiary whether owned or leased on the
date hereof or hereafter, the gross book value of which exceeds one percent of
Consolidated Net Worth, other than manufacturing plants and warehouses which the
Board of Directors by resolution declares are not of material importance to the
total business conducted by the Company and its Restricted Subsidiaries as an
entirety and which, when taken together with all other plants and warehouses as
to which such a declaration has been so made, is so declared by the Board of
Directors to be not of material importance to the total business conducted by
the Company and its Restricted Subsidiaries as an entirety.
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person whether or not included in the
most recent consolidated balance sheet of such Person and its Subsidiaries under
GAAP.
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<PAGE>
"Redemption Date" when used with respect to any Security to be
redeemed shall mean the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price" shall mean the amount payable for the redemption of
any Security on the Redemption Date, and shall always include interest accrued
and unpaid to the Redemption Date and any Additional Amounts payable with
respect thereto, unless otherwise specifically provided.
"Registered Security" shall mean any Security registered on the books
of the Registrar kept for that purpose in accordance with the terms hereof.
"Responsible Officer," when used with respect to the Trustee, shall
mean any officer in the corporate trust department of the Trustee or any officer
of the Trustee customarily performing functions similar to those performed by
any officer in the corporate trust department of the Trustee with respect to a
particular corporate matter or any other officer to whom any corporate trust
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" shall mean (i) IMC, IMC-Canada and the
Partnership, and any intermediate holding company between either IMC, IMC-Canada
or the Partnership and the Company and (ii) any other Subsidiary of the Company
that is not an Unrestricted Subsidiary.
"Securities" shall mean the unsecured, unsubordinated debt securities,
as amended or supplemented from time to time pursuant to this Indenture, that
are issued under this Indenture.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stated Maturity," when used with respect to any Security or any
installment of interest thereon, shall mean the date specified in such Security
as the fixed date on which the principal of such Security or such installment of
interest is due and payable.
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<PAGE>
"Subsidiary" of any Person shall mean (i) any Person of which more
than 50% of the total voting power of shares of capital stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the Restricted
Subsidiaries of that Person or a combination thereof, and (ii) any partnership,
joint venture or other Person in which such Person or one or more of the
Restricted Subsidiaries of that Person or a combination thereof has the power to
control by contract or otherwise the board of directors or equivalent governing
body or otherwise controls such entity.
"TIA" or "Trust Indenture Act" shall mean the Trust Indenture Act of
1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of this
Indenture, except as provided in Sections 9.1 and 9.3 hereof.
"Transfer Agent" shall mean any Person, which may be the Company,
authorized by the Company to exchange or register the transfer of Securities.
"Trustee" shall mean the party named as such in this Indenture unless
a successor replaces it pursuant to the provisions hereunder, and thereafter
shall mean such successor.
"Unrestricted Subsidiary" shall mean (i) any Subsidiary of the Company
that at the time of determination shall be designated an Unrestricted Subsidiary
by the Board of Directors in the manner provided below and (ii) any Subsidiary
of an Unrestricted Subsidiary. The Board of Directors may designate any
Subsidiary of the Company (including any newly-acquired or newly-formed
Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns any
capital stock of, or owns or holds any Property of, the Company or any other
Subsidiary of the Company that is not a Subsidiary of the Subsidiary so
designated; PROVIDED, HOWEVER, that the Subsidiary to be so designated has total
assets of $5,000 or less. Any such designation by the Board of Directors shall
be evidenced to the Trustee by promptly filing with the Trustee a copy of the
Board Resolutions giving effect to such designation and an Officers'
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<PAGE>
Certificate certifying that such designation complied with the foregoing
provisions.
"U.S. Government Obligations" shall mean securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as full faith and
credit obligation by the United States of America, that, in either case, are not
callable or redeemable at the option of the issuer thereof and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligations or a specific payment of
interest on or principal of any such U.S. Government Obligations held by such
custodian for the account of the holder of a depository 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 depository receipt for
any amount received by the custodian in respect of the U.S. Government
Obligations or the specific payment of interest on or principal of the U.S.
Government Obligations evidenced by such depository receipt.
"Yield to Maturity" means the yield to maturity on a series of
Securities at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
SECTION 1.2. OTHER DEFINITIONS.
Defined in
Term Section
---- ----------
"Conversion Price" . . . . . . . . . . 12.4
"covenant defeasance option" . . . . . . . 8.1
"Date of Conversion" . . . . . . . . . 12.2
"Events of Default" . . . . . . . . . 6.1
"Last Sale Price" . . . . . . . . . . 12.3
"legal defeasance option" . . . . . . . 8.1
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"mandatory sinking fund payment". . . . . . 11.1
"optional sinking fund payment" . . . . . . 11.1
"Paying Agent . . . . . . . . . . . 2.3
"Rights" . . . . . . . . . . . . . 12.11
"Registrar" . . . . . . . . . . . 2.3
"Sale/Leaseback Transaction" . . . . . . 4.8
"Securities Custodian" . . . . . . . . 2.3
"Surviving Entity . . . . . . . . . . 5.1
"Trading Day" . . . . . . . . . . . 12.3
SECTION 1.3. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee," means the Trustee; and
"obligor" on the Securities means the Company, any other obligor upon
the Securities or any successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule under
the TIA have the meanings so assigned to them.
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In addition, for purposes of Sections 311(b)(4) and 311(b)(6) of the
TIA, the following terms shall have the following meanings:
"cash transaction" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn upon banks' or
bankers' acceptances and payable upon demand.
"self-liquidating paper" means any draft, bill of exchange, acceptance
or obligation which is made, drawn, negotiated or incurred by the Company for
the purpose of financing the purchase, processing, manufacture, shipment,
storage or sale of goods, wares or merchandise and which is secured by documents
evidencing title to, possession of or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the sale of the goods,
wares or merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating or
incurring of the draft, bill of exchange, acceptance or obligation.
SECTION 1.4. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural and words in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
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ARTICLE II
THE SECURITIES
SECTION 2.1. TERMS AND FORMS.
The aggregate principal amount of Securities that may be authenticated
and made available for delivery under this Indenture is unlimited. The
Securities may be issued in one or more series of Securities and shall bear the
title, interest, if any, at the rates and from the dates, shall mature at the
times, may be redeemable at the prices and upon the terms, shall be denominated
and payable at the place or places and in the currency or currencies (which may
be other than United States dollars), including composite currencies, and shall
contain or be subject to such other terms as shall be approved by or pursuant to
a Board Resolution of the Company or in one or more supplements to this
Indenture.
The Securities of each series hereunder shall be in one or more forms
approved from time to time by or pursuant to a Board Resolution of the Company
or in one or more supplements to this Indenture establishing the following:
(1) the title or designation of the Securities and the series in
which such Securities shall be included (which, unless such
Securities constitute part of a series of Securities previously
issued, shall distinguish the Securities of the series from all
other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of such title or the Securities of such series which may be
authenticated and made available for delivery under this
Indenture (except for Securities authenticated and made available
for delivery upon registration or transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to
Sections 2.5, 2.6, 2.9 or 3.7);
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(3) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both;
any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of
the series may be exchanged for Registered Securities of the
series; and whether any Securities of the series are to be
issuable initially in global form and, if so, (i) whether
beneficial owners of interests in any such global Security may
exchange such interest for Securities of such series and of like
tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if other
than in the manner specified in Section 2.9 and (ii) the name of
the Depository or the U.S. Depository, as the case may be, with
respect to any global Security;
(4) the date as of which any Bearer Securities of the series and any
temporary global Security representing outstanding Securities of
the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(5) if Securities of the series are to be issuable as Bearer
Securities, whether interest in respect of any portion of a
temporary Bearer Security in global form (representing all of the
outstanding Bearer Securities of the series) payable in respect
of any date or dates prior to the exchange of such temporary
Bearer Security for definitive Securities of the series shall be
paid to any clearing organization with respect to the portion of
such temporary Bearer Security held for its account and, in such
event, the terms and conditions (including any certification
requirements) upon which any such interest payment received by a
clearing organization will be credited to the Persons
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entitled to interest payable on such date or dates;
(6) the date or dates on which the principal of such Securities is
payable;
(7) the rate or rates at which such Securities shall bear interest,
if any, or the method in which such rate or rates are determined,
the date or dates from which such interest shall accrue, the
dates on which such interest shall be payable and the record date
for Holders entitled to the interest payable on Registered
Securities on any such date, whether and under what circumstances
Additional Amounts on such Securities shall be payable and, if
so, whether the Company has the option to redeem the affected
Securities rather than pay such Additional Amounts, and the basis
upon which interest shall be calculated if other than as
otherwise provided in this Indenture;
(8) the place or places, if any, in addition to or other than New
York, New York, or the City of Chicago, Illinois, where the
principal of and interest on or Additional Amounts, if any,
payable in respect of such Securities shall be payable;
(9) the period or periods within which, the price or prices at which
and the terms and conditions upon which such Securities may be
redeemed, in whole or in part, at the option of the Company;
(10) the obligation, if any, of the Company to redeem or purchase such
Securities pursuant to a sinking fund, at the option of a Holder
thereof or otherwise and the period or periods within which, the
price or prices at which and the terms and conditions upon which
such Securities shall be redeemed or purchased in whole or in
part, pursuant to
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such obligation, and any provisions for the remarketing of such
Securities;
(11) the denominations in which Registered Securities of the series,
if any, shall be issuable, and the denominations in which Bearer
Securities of the series, if any, shall be issuable, in either
case if other than as otherwise provided in this Indenture;
(12) if other than the principal amount thereof, the portion of the
principal amount of such Securities which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to
Section 6.2;
(13) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
public or private debts, the coin or currency, including
composite currencies, in which payment of the principal of or
interest, if any, and any Additional Amounts in respect of such
Securities shall be payable and whether the Securities of the
series may be discharged other than as provided in Article VIII;
(14) if the principal of or interest, if any, and any Additional
Amounts in respect of such Securities are to be payable, at the
election of the Company or a Holder thereof, in a coin or
currency, including composite currencies, other than that in
which the Securities are stated to be payable, the period or
periods within which, and the terms and conditions upon which,
such election may be made;
(15) if the amount of payments of principal of or interest, if any, or
any Additional Amounts in respect of such Securities may be
determined with reference to an index, formula or other method
based on a coin or currency other than that in which the
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Securities are stated to be payable, the manner in which such
amounts shall be determined;
(16) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other
conditions, then the form and terms of such certificates,
documents or conditions;
(17) any terms which may be related to warrants issued by the Company
in connection with, or for the purchase of, Securities of such
series, including whether and under what circumstances the
Securities of any series may be used toward the exercise price of
any such warrants;
(18) whether the Securities of the series are to be convertible into
shares of common stock or other securities of the Company, and
the conversion price, conversion period and any conversion
provisions other than as provided in Article XII;
(19) any other events of default or covenants with respect to
Securities of such series; and
(20) any other terms of such Securities (which terms shall not be
inconsistent with the provisions of this Indenture).
If the form of the Security of any series is approved by or pursuant
to a Board Resolution, an Officers' Certificate delivered to the Trustee shall
state that all conditions precedent relating to the authentication and delivery
of such Security have been complied with and shall be accompanied by a copy of
the Board Resolution by or pursuant to which the form of such Security has been
approved. The Securities may have notations, legends or endorsements required
by law, stock exchange rule,
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agreements to which the Company is subject or usage (provided that any such
notation, legend or endorsement is in a form acceptable to the Company and the
Trustee). Each Security shall be dated the date of its authentication. Each
Security may contain any other terms as are not inconsistent with the provisions
of this Indenture.
All Securities of any one series and coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except as to
denomination and the rate or rates of interest, if any, the time or times at
which the principal thereof may be payable, the date from which interest, if
any, shall accrue and except as may otherwise be provided in or pursuant to such
Board Resolution and set forth in the Officers' Certificate hereinabove
described 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 for issuances of additional Securities of such series or
to establish additional terms of such series of Securities.
The Securities of each series may be issued as Registered Securities
without coupons or, if provided by the terms of the instrument establishing such
series of Securities, as Bearer Securities, with or without coupons and, in
either case, may be issued initially, temporarily or permanently in global form
(as provided in Section 2.10). Unless the form of a Security for a series
provides otherwise, the Registered Securities shall be issued in denominations
of $1,000 or integral multiples thereof and Bearer Securities shall be issuable
in the denomination of $5,000.
Except as otherwise specified as contemplated by this Section 2.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 2.2. EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Securities and the coupons for the Company
by manual or facsimile signature. The Company's seal may be reproduced on the
Securities, but
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the Company's seal shall not be required to be included on the Securities.
Coupons shall bear the facsimile signatures of two Officers of the Company.
If an Officer whose signature is on a Security or coupon no longer
holds that office at the time the Security is authenticated by the Trustee, the
Security and coupon shall nevertheless be valid.
The aggregate principal amount of Securities outstanding hereunder at
any time shall be unlimited except that such outstanding amount (exclusive of
any premium) may not exceed the amount authorized from time to time by the Board
of Directors of the Company and except as provided in Section 2.6. Upon receipt
of a Company Order for the authentication and delivery of Securities of a
series, the Trustee shall authenticate and deliver for original issue Securities
of a series as to which an Officers' Certificate of the Company or a
supplemental indenture has been delivered to the Trustee pursuant to Section
2.1.
No Security or any coupon appertaining thereto shall be valid until
the Trustee or the authenticating agent referred to below manually signs the
certificate of authentication on the Security. Each Registered Security shall
be dated the date of its authentication. Bearer Securities and any temporary
Bearer Security in global form shall be dated as specified in the Officers'
Certificate of the Company or in the supplements to this Indenture contemplated
by Section 2.1. The signature of the Trustee or the authenticating agent
referred to below shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate the Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate.
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Except as permitted by Section 2.6, the Trustee shall not authenticate
and make available for delivery any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and cancelled.
The Trustee's authentication shall be in the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
-------------------------------------
The Bank of New York, as Trustee
Dated: By:
-------------------------------------
Authorized Signatory
If the forms and terms of the Securities of the series and any related coupons
have been established in or pursuant to one or more Officers' Certificates as
permitted by Section 2.1 and 2.2, in authenticating such Securities and
accepting the additional responsibilities under this Indenture relating to such
Securities the Trustee shall be entitled to receive, and (subject to Section
7.1) shall be fully protected in relying upon an Opinion of Counsel to the
effect that:
(a) the form and terms of such Securities and coupons, if any, have
been duly authorized and established pursuant to Sections 2.1 and 2.2 and comply
with this Indenture, and
(b) such Securities, when authenticated and delivered by the Trustee
and issued by the Company, and such coupons, if any, when 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 customary exceptions,
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PROVIDED, HOWEVER, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the Opinion of Counsel above may state:
(x) that the forms of such Securities have been, and the terms of
such Securities (when established in accordance with such procedures as may be
specified from time to time in a Company Order, all as contemplated by and in
accordance with a Board Resolution or any Officers' Certificate pursuant to
Section 2.1, as the case may be) will have been, duly authorized by the Company
and established in conformity with the provisions of this Indenture; and
(y) that such Securities, together with the coupons, if any,
appertaining thereto, when (1) executed by the Company, (2) completed,
authenticated and made available for delivery by the Trustee in accordance with
this Indenture, and (3) 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 customary exceptions.
With respect to Securities of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company of any
of such Securities, the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Section 2.1 and this Section 2.2, as applicable,
at or prior to the time of the first authentication of Securities of such series
unless and until it has received written notification that such opinion or other
documents have been superseded or revoked. In connection with the
authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume that the Company's
instructions to authenticate and make available for delivery such Securities do
not violate any rules, regulations or orders of any
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governmental agency or commission having jurisdiction over the Company.
SECTION 2.3. REGISTRAR, PAYING AGENT, CONVERSION AGENT, DEPOSITORY AND
SECURITIES CUSTODIAN.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange (the "Registrar"), an
office or agency including the office or agency maintained by the Company
pursuant to Section 4.2 where Securities may be presented for payment (the
"Paying Agent") and, if applicable, an office or agency where the Securities may
be presented for conversion (the "Conversion Agent"). The Registrar shall keep
a register of the Securities and of their transfer and exchange. The Company
may appoint one or more co-registrars and one or more additional paying agents
or conversion agents. The term "Paying Agent" includes any additional paying
agent, and the term "Conversion Agent" includes any additional conversion agent.
The Company shall maintain a custodian ("Securities Custodian") with respect to
global Securities for so long as global Securities remain outstanding.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent, Depository, Securities Custodian or
co-registrar not a party to this Indenture, which agreement shall implement the
provisions of this Indenture that relate to such agent and incorporate the terms
of the TIA. The Company shall notify the Trustee of the name and address of any
such agent. If the Company fails to maintain a Registrar, Paying Agent,
Conversion Agent, if applicable, or Securities Custodian, if applicable, the
Trustee shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 7.7. The Company or any of its Subsidiaries may
act as Paying Agent, Conversion Agent, Registrar, co-registrar or Transfer
Agent.
The Company initially appoints the Trustee as Registrar and Paying
Agent in connection with the Securities and the Trustee accepts such
appointment.
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SECTION 2.4. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least seven Business Days before each interest payment date
(and in all events at intervals of not more than six months) and at such other
times as the Trustee may request in writing a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of
Securityholders. The Company and the Trustee shall otherwise comply with TIA
Section 312(a).
SECTION 2.5. TRANSFER, REGISTRATION AND EXCHANGE.
When a Registered Security is presented at an office or agency
maintained for that series pursuant to Section 4.2 in proper form for
registration of transfer with a request to register a transfer, the Registrar or
co-registrar at that office shall register the transfer as requested.
At the option of the Securityholder, Registered Securities of any
series may be exchanged upon surrender to the Registrar or a co-registrar for
Registered Securities of the same series of like aggregate principal amount,
stated maturity and tenor and of other authorized denominations upon surrender
at any office or agency maintained for that series pursuant to Section 4.2.
If so provided with respect to Securities of a series, at the option
of the Holder, Bearer Securities of any such series may be exchanged for
Registered Securities of the same series containing identical terms and
provisions, of any authorized denominations and aggregate principal amount, upon
surrender of the Bearer Securities to be exchanged at any office or agency
maintained for that series pursuant to Section 4.2, with all unmatured coupons
and all matured coupons in default thereto appertaining. If the Holder of a
Bearer Security is unable to produce any such unmatured coupon or coupons or
matured coupon or coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds
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acceptable to the Company and the Trustee in an amount equal to the face amount
of such missing coupon or coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there is furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent for that series harmless. If thereafter the Holder of such
Security shall surrender to any Paying Agent for that series any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; PROVIDED, HOWEVER, that
except as otherwise provided in Section 4.2, interest represented by coupons
shall be payable only upon presentation and surrender of those coupons at an
office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency maintained for that series pursuant to Section 4.2 in exchange
for a Registered Security of the same series and like tenor after the close of
business at such office or agency on any record date for the payment of interest
and any Additional Amounts thereon and before the opening of business at such
office or agency on the relevant payment date therefor, such Bearer Security
shall be surrendered without the coupon relating to such payment date or
proposed date of payment, as the case may be (or if such coupon is so
surrendered with such Bearer Security, such coupon shall be returned to the
person so surrendering the Bearer Security), and interest will not be payable on
such payment date or proposed date for payment, as the case may be, in respect
of the Registered Security issued in exchange for such Bearer Security, but will
be payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
Every Security presented or surrendered for registration of transfer
or exchange shall (if so required by the Company or the Registrar or
co-registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar duly executed by
the Holder thereof or his attorney duly authorized in writing. To permit
transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Securities at the Registrar's or co-registrar's request.
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Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 2.1, any global Security shall be exchangeable only if
(i) the Depository or U.S. Depository, as applicable, is at any time unwilling,
unable or ineligible to continue as Securities Depository and a successor
Depository, or U.S. Depository as applicable, is not appointed by the Company
within 90 days of the date the Company is so informed in writing, (ii) the
Company executes and delivers to the Trustee a Company Order to the effect that
such global Security shall be so exchangeable, or (iii) an Event of Default has
occurred and is continuing with respect to the Securities. If the beneficial
owners of interests in a global Security are entitled to exchange such interests
for Securities of such series and of like tenor and principal amount of any
authorized form and denomination, as specified as contemplated by Section 2.1,
then without unnecessary delay but in any event not later than the earliest date
on which such interests may be so exchanged, the Company shall deliver to the
Trustee definitive Securities of that series in aggregate principal amount equal
to the principal amount of such global Security, executed by the Company. On or
after the earliest date on which such interests may be so exchanged, such global
Securities shall be surrendered from time to time by the U.S. Depository or such
other Depository as shall be specified in the Company Order with respect
thereto, and in accordance with instructions given to the Trustee and the U.S.
Depository or such other Depository, as the case may be, which instructions
shall be in writing but need not be accompanied by an Officers' Certificate of
the Company or an Opinion of Counsel, as shall be specified in the Company Order
with respect thereto to the Trustee, as the Company's agent for such purpose, to
be exchanged, in whole or in part, for definitive Securities of the same series
without charge. The Trustee shall authenticate and make available for delivery,
in exchange for each portion of such surrendered global Security, a like
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such global
Security to be exchanged which shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof (unless the Securities of the series are not issuable
both as Bearer Securities and as Registered
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Securities, in which case the definitive Securities exchanged for the global
Security shall be issuable only in the form in which the Securities are
issuable, as specified as contemplated by Section 2.1); PROVIDED, HOWEVER, that
no such exchanges may occur (a) for a period of 15 days next preceding the 15th
day of any selection of Securities of that series to be redeemed; pursuant to
Section 3.3, or to exchange any Securities of a series selected, called or being
called for redemption in whole or in part except in the case of any Security to
be redeemed in part, the portion thereof not so to be redeemed; and PROVIDED,
FURTHER, that (unless otherwise specified as contemplated by Section 2.1) no
Bearer Security delivered in exchange for a portion of a global Security shall
be mailed or otherwise delivered to any location in the United States. Promptly
following any such exchange in part, such global Security shall be returned by
the Trustee to the U.S. Depository or such other Depository referred to above in
accordance with the instructions of the Company referred to above. If a
Registered Security is issued in exchange for any portion of a global Security
after the close of business at the office or agency where such exchange occurs
on any record date for the payment of interest or any Additional Amounts
thereon, and before the opening of business at such office or agency on the
relevant payment date therefor, interest and any Additional Amounts in respect
of such Registered Security will not be payable on such payment date, but will
be payable on such payment date only to the Person to whom interest or any
Additional Amounts in respect of such portion of such global Security is payable
in accordance with the provisions of this Indenture.
No service charge shall be made for any registration of transfer or
exchange, or redemption 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 2.9 or 9.5 not involving any transfer.
The Company shall not be required (a) to issue, register the transfer
of, or exchange any Securities of any series for a period of 15 days next
preceding the day of any selection of Securities of such series to be redeemed
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pursuant to Section 3.3, or (b) to register the transfer of or exchange any
Securities of any series selected, called or being called for redemption in
whole or in part except, in the case of any Registered Security to be redeemed
in part, the portion thereof not so to be redeemed or (c) to exchange any Bearer
Security so selected for redemption except, to the extent provided with respect
to Securities of a series, that such a Bearer Security may be exchanged for a
Registered Security of that series, provided that such Registered Security shall
be immediately surrendered for redemption with written instruction for payment
consistent with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
endorsed thereon surrendered upon such registration of transfer or exchange.
SECTION 2.6. REPLACEMENT SECURITIES.
If the Holder of a mutilated or defaced Security or a Security with a
mutilated or defaced coupon appertaining to it surrenders such Security to the
Trustee or if the Holder of a Security presents evidence to the satisfaction of
the Company and the Trustee of the destruction, loss or theft of the Security or
the destruction, loss or theft of a coupon and surrenders the Security to which
such coupon appertains with all appurtenant coupons not so lost, stolen or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Security of the same series and of like tenor, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security,
if the requirements set forth in the next succeeding paragraph are met. If
required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent or any authenticating agent from any
loss which any of them may suffer if a Security is replaced.
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Upon the issuance of any substitute Security, 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. In case any Security or
coupon which has matured or is about to mature or has been called for redemption
in full shall become mutilated or defaced or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Security or coupon, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security or coupon); PROVIDED, HOWEVER, that the
applicant for such payment shall furnish to the Company and to the Trustee and
any agent of the Company or the Trustee such security or indemnity as any of
them may require to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company and
the Trustee and any agent of the Company or the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Security or coupon and of
the ownership thereof.
Every substitute Security of any series, with coupons, if any, issued
pursuant to the provisions of this Section 2.6 by virtue of the fact that any
Security is destroyed, lost or stolen or that a coupon appertaining to it is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security or coupon
shall be at any time enforceable by anyone and shall be entitled to all the
benefits of (but shall be subject to all the limitations of rights set forth in)
this Indenture equally and proportionately with any and all other Securities
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by the law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
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SECTION 2.7. OUTSTANDING SECURITIES.
The Securities of any series outstanding at any time are all the
Securities of such series authenticated and delivered by the Trustee except for
those cancelled by it, those delivered to it for cancellation, those described
in this Section as not outstanding and in the case of any global Securities, the
principal amount by which such global Securities have been reduced by the
Trustee or the Securities custodian in accordance with this Indenture.
If any Security is replaced or paid pursuant to Section 2.6, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under
Section 4.1 or 8.1, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a Redemption Date or maturity date money sufficient to pay
all principal and interest payable on that date with respect to the Securities
of a particular series (or portions thereof) to be redeemed or maturing, as the
case may be (and in the case of any Security which is to be redeemed prior to
the Maturity thereof, notice of such redemption has been duly given or provision
satisfactory to the Trustee has been made for giving such notice), and the
Paying Agent is not prohibited from paying such money to Securityholders on that
date pursuant to the terms of this Indenture, then on and after that date such
Securities of that series (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.
If any Security is cancelled by the Trustee or delivered to the
Trustee for cancellation, it ceases to be outstanding and interest on it ceases
to accrue.
A Security of any series does not cease to be outstanding because the
Company or an Affiliate holds such Security, except as otherwise provided, in
Section 2.8 hereof.
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SECTION 2.8. TREASURY SECURITIES.
In determining whether the Holders of the required principal amount of
Securities (in the aggregate or with respect to a particular series, in each
case only as expressly provided herein) have concurred in any direction, waiver
or consent, any Securities owned by the Company or an Affiliate shall be
disregarded (including for purposes of determining the outstanding principal
amount of Securities or any series of Securities) except that for the purposes
of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent only Securities which the Trustee knows are so
owned shall be so disregarded.
SECTION 2.9. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon receipt of
the written order of the Company signed by two Officers. Temporary Securities
and, if Bearer Securities, temporary coupons shall be substantially in the form
of definitive Securities and, if Bearer Securities, definitive coupons, but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee, upon
receipt of the written order of the Company signed by two Officers, shall
authenticate definitive Securities in exchange for temporary Securities. Until
such exchange, temporary Securities shall be entitled to the same rights,
benefits and privileges as definitive Securities.
SECTION 2.10. SECURITIES IN GLOBAL FORM.
If Securities of a series are issuable in global form, any such
Security may provide that it shall represent the aggregate amount of outstanding
Securities from time to time endorsed thereon and may also 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 or changes
in the rights of Holders, of outstanding
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Securities represented thereby shall be made in such manner and by such Person
or Persons as shall be specified therein.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Securities or coupons to the
Trustee for cancellation. The Registrar and the Paying Agent shall forward to
the Trustee any Securities surrendered to them for registration of transfer,
exchange or payment and any coupons surrendered for payment. The Trustee shall
cancel all Securities surrendered for registration of transfer, exchange,
payment, replacement or cancellation and all coupons surrendered for payment and
return such cancelled Securities to the Company pursuant to a written order
signed by two Officers. The Company may not issue new Securities to replace
Securities that it has redeemed or paid or that have been delivered to the
Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest or any Additional
Amounts on any series of Registered Securities, and so long as the Trustee deems
the following procedure practicable, the Company shall pay the defaulted
interest and any Additional Amounts to Persons who are Holders of Registered
Securities of such series on a subsequent special record date in the following
manner. The Company shall fix the special record date (which shall be at least
five days before the payment date) for the payment of such defaulted interest
and any Additional Amounts on such Securities and the payment date for such
defaulted interest. At least 15 days before the special record date, the
Company (or the Trustee) shall mail each Holder of Registered Securities a
notice that states the special record date, the payment date and the amount of
defaulted interest and any Additional Amounts to be paid, provided the Company
has made arrangements satisfactory to the Trustee for payment of the aggregate
amount to be paid on such payment date. On such payment date the Trustee shall
pay out of funds provided by the Company such defaulted interest and any
Additional Amounts. In case a Bearer Security of any series is surrendered at
the office or agency of the Company maintained pursuant to Section 4.2 in a
Place of Payment for
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such series in exchange for a Registered Security of such series after the close
of business at such office or agency on any special record date and before the
opening of business at such office or agency on the related proposed date for
payment of defaulted interest and any Additional Amounts, such Bearer Security
shall be surrendered without the coupon relating to such proposed date of
payment and defaulted interest and any Additional Amounts will not be payable on
such proposed date of payment in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon on or after such payment date in accordance with the provisions of
this Indenture. The Company may pay defaulted interest and any Additional
Amounts in any other lawful manner.
SECTION 2.13. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any Agent may deem and treat the Person
in whose name any Security shall be registered upon the register of Securities
kept by the Registrar as the absolute owner of such Registered Security (whether
or not such Security shall be overdue and notwithstanding any notation of the
ownership or other writing thereon made by anyone other than the Company, any
Registrar or co-registrar) for the purpose of receiving payments of principal
of, interest on or any Additional Amounts payable with respect to such
Registered Security and for all other purposes whatsoever and neither the
Company, the Trustee nor any Agent shall be affected by any notice to the
contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Security or coupon shall be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
SECTION 2.14. CUSIP NUMBERS.
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The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; PROVIDED, that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE III
REDEMPTION
SECTION 3.1. APPLICABILITY OF ARTICLE.
This Article shall apply to the Securities of each series, if any,
that by their terms are subject to redemption at the option of the Company or
pursuant to the operation of a sinking fund or otherwise are required to be
redeemed pursuant to the terms of the Securities. If the terms of any Security
shall conflict with any provision of this Article III, the terms of such
Security shall govern.
SECTION 3.2. NOTICES TO TRUSTEE.
If the Company elects to redeem Securities pursuant to the optional
redemption provisions, if any, set forth in such Securities, it shall furnish to
the Trustee an Officers' Certificate setting forth the paragraph of the
Securities of the applicable series pursuant to which the redemption shall
occur, the Redemption Date, the principal amount of Securities to be redeemed
and the Redemption Price.
If Securities of any series by their terms are redeemable pursuant to
the operation of a sinking fund or pursuant to another mandatory redemption
provision of the Securities, the Company shall notify the Trustee by an
Officers' Certificate of the amount of the next sinking fund
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payment or amount required to satisfy such mandatory redemption payment and the
portion of such payment which is to be satisfied by delivering and crediting
Securities of the same series pursuant to Section 3.6.
If the Company elects to reduce pursuant to the terms of such
Securities the principal amount of Securities to be redeemed, it shall notify
the Trustee by Officers' Certificate of the amount of the reduction and the
basis for it. If the Company elects to credit against any such redemption
Securities of the same series it has not previously delivered to the Trustee for
cancellation, it shall deliver the Securities with such Officers' Certificate.
The Company shall give each notice or Officers' Certificate provided
for in this Section at least 45 days (unless a shorter period shall be
satisfactory to the Trustee or a longer period required by Section 3.4) but not
more than 60 days before the applicable Redemption Date.
If the Registrar is not the Trustee, the Company shall, concurrently
with each notice of redemption or repurchase, cause the Registrar to deliver to
the Trustee a certificate (upon which the Trustee may rely) setting forth the
principal amounts of Securities held by each Holder.
SECTION 3.3. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities of a series are to be redeemed, the
Trustee shall select the Securities to be redeemed on a pro rata basis, by lot
or by such method as the Trustee shall deem fair and appropriate. In the event
of partial redemption by lot, the particular Securities of a series to be
redeemed shall be selected, unless otherwise provided herein, not less than 30
nor more than 60 days prior to the Redemption Date by the Trustee from the
outstanding Securities not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security selected for
partial redemption, the principal amount thereof to be redeemed. Securities and
portions of Securities selected shall be in amounts of
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$1,000 or whole multiples of $1,000; except that if all of the Securities of a
Holder are to be redeemed, the entire outstanding amount of Securities held by
such Holder, even if not a multiple or $1,000, shall be redeemed. Except as
provided in the preceding sentence, provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption.
SECTION 3.4. NOTICE OF REDEMPTION.
The Company shall give notice of a redemption at least 30 days but not
more than 60 days before the Redemption Date, with respect to Registered
Securities, by mailing a notice of redemption to each Holder of Registered
Securities of such series to be redeemed at such Holder's address as it appears
on the Securities register maintained by the Registrar and, with respect to
Bearer Securities, by publishing in an Authorized Newspaper notice of such
redemption on two separate days.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(5) the paragraph of the Securities pursuant to which the Securities
called for redemption are being redeemed;
(6) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to
accrue on and after the Redemption Date and the only remaining
right of the Holders of such Securities is to receive payment of
the
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Redemption Price upon surrender to the Paying Agent of the
Securities to be redeemed;
(7) if any Security is to be redeemed in part, the portion of the
principal amount (equal to $1,000 or any integral multiple
thereof) of such Security to be redeemed and that, on or after
the Redemption Date, upon surrender of such Security, a new
Security or Securities of the same series in aggregate principal
amount equal to the unredeemed portion thereof will be issued
without charge to the Securityholder;
(8) if less than all of the Securities of a series are to be
redeemed, the identification of the particular Securities of such
series (or portion thereof) to be redeemed, as well as the
aggregate principal amount of Securities of such series to be
redeemed and the aggregate principal amount of Securities of such
series estimated to be outstanding after such partial redemption;
and
(9) the CUSIP number, if any.
At the Company's request, the Trustee shall give the notice of
redemption in the name and at the expense of the Company. In such event, the
Company shall provide the Trustee with the information required by this Section
and shall provide notice of such redemption to the Trustee at least 45 days
prior to the Redemption Date (unless a shorter period shall be satisfactory to
the Trustee). If such notice is given by the Company, the Company shall provide
a copy of such notice given to the Holders to the Trustee and any Paying Agent
at least 2 days prior to the date such notice is given to such Holders, but in
any event at least 15 days prior to the Redemption Date (unless a shorter period
shall be satisfactory to the Trustee).
SECTION 3.5. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Securities of the series called
for redemption become due and payable on
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the Redemption Date at the Redemption Price. Upon surrender to any Paying
Agent, such Securities shall be paid at the Redemption Price, plus accrued
interest to the Redemption Date and any Additional Amounts with respect thereto;
PROVIDED, HOWEVER, that installments of interest whose Stated Maturity is on or
prior to the Redemption Date shall be payable, in the case of Bearer Securities,
to bearers of the coupons for such interest and Additional Amounts upon
surrender thereof and, in the case of Registered Securities, to the Holders of
such series of Securities, registered as such, at the close of business on the
relevant record date for the payment of such installment of interest and
Additional Amounts.
Notice of redemption shall be deemed to be given when mailed or
published, as the case may be, whether or not the Holder receives the notice.
In any event, failure to give such notice, or any defect therein, shall not
affect the validity of the proceedings for the redemption of the Securities.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of each missing
coupon or coupons may be waived by the Company and the Trustee if there shall be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent for such Security harmless. If thereafter the Holder
of such Security shall surrender to the Trustee or any Paying Agent for such
Security any such missing coupon in respect of which a deduction shall have been
made from the Redemption Price, such Holder shall be entitled to receive the
amount so deducted; PROVIDED, HOWEVER, that interest (and any Additional
Amounts) represented by coupons shall be payable only upon presentation and
surrender of these coupons at an office or agency located outside of the United
States except as otherwise provided in Section 4.2.
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SECTION 3.6. DEPOSIT OF REDEMPTION PRICE.
At least one Business Day prior to the Redemption Date, the Company
shall irrevocably deposit with the Trustee or with the Paying Agent (or if the
Company or a Subsidiary of the Company is acting as the Paying Agent, set aside,
segregate and hold in trust, as provided herein) in immediately available funds
money sufficient to pay the Redemption Price of and accrued and unpaid interest
on all Securities to be redeemed on that date.
If the Company complies with the preceding paragraph, interest on the
Securities to be redeemed will cease to accrue on the applicable Redemption
Date, whether or not such Securities are presented for payment. If any Security
called for redemption shall not be so paid upon surrender for redemption because
of the failure of the Company to comply with the preceding paragraph, interest
will be paid on the unpaid principal, from the Redemption Date until such
principal is paid, and, to the extent lawful, on any interest not paid on such
unpaid principal, in each case at the rate provided in the Securities for the
applicable series.
If any Security by its terms permits any sinking fund payment
obligation to be satisfied by delivering and crediting Securities, the Company
shall deliver such Securities to the Trustee for crediting against such payment
obligation in accordance with the terms of such Securities and this Indenture.
SECTION 3.7. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder at the expense of
the Company a new Security of the same series equal in principal amount to the
unredeemed portion of the Security surrendered.
If a Security in global form is surrendered upon redemption in part,
the Company shall execute, and the Trustee shall authenticate and make available
for delivery to the U.S. Depository or other Depository for such Security in
global form as shall be specified in the Company Order to
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the Trustee with respect thereto, without service charge, a new Security in
global form in a denomination equal to and in exchange for the unredeemed
portion of the principal of the Security in global form so surrendered.
ARTICLE IV
COVENANTS
Subject to the provisions of Section 8.1, so long as Securities are
outstanding hereunder, the Company covenants for the benefit of the
Securityholders that:
SECTION 4.1. PAYMENT OF SECURITIES.
The Company will punctually pay the principal of, interest and
Additional Amounts, if any, on the Securities on the dates and in the manner
provided in the Securities, any coupons appertaining thereto and this Indenture.
Principal, interest and any Additional Amounts shall be considered paid on the
date due if the Paying Agent (other than the Company or any of its Subsidiaries)
holds on that date money sufficient to pay all principal, interest and any
Additional Amounts then due.
Any interest due on and any Additional Amounts payable in respect of
Bearer Securities on or before their maturity, in respect of the principal of
such a Security, shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature.
The Company shall pay interest on overdue principal and, to the extent
lawful, interest on overdue installments of interest or Additional Amounts, if
any, at the rate borne by such Securities.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any record date established
to determine the Person to whom interest or any Additional Amounts are payable
on the next following
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interest payment date therefor and before the opening of business (at such
office or agency) on such interest payment date, such Bearer Security shall be
surrendered without the coupon relating to such interest payment date, and
interest will not be payable on such interest payment date in respect of the
Registered Security issued in exchange of such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY FOR NOTICES AND DEMANDS.
The Company shall maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of that series may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities, the
Company shall maintain, subject to any laws or regulations applicable thereto,
an office or agency in a Place of Payment for such series that is located
outside the United States where Securities of such series and the related
coupons may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Securities of such series); PROVIDED, HOWEVER,
that if the Securities of such series are listed on The International Stock
Exchange of the United Kingdom and the Republic of Ireland Limited or the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, the Company will maintain a
Paying Agent in London, Luxembourg or any other city so required located outside
the United States, as the case may be, so long as the Securities of such series
are listed on such exchange. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
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office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Bearer Securities of
that series) at the place specified for that purpose pursuant to Section 2.1.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal or interest or Additional Amounts on Bearer Securities shall be made
at any office or agency of the Company in the United States or by check mailed
to any address in the United States or by transfer to an account maintained with
a bank located in the United States; PROVIDED, HOWEVER, payment of principal of
and interest in U.S. dollars (including Additional Amounts payable in respect
thereof) on any Bearer Security may be made at the office of the Paying Agent in
The City of New York, State of New York if (but only if) payment of the full
amount of such principal, interest or Additional Amounts at all offices outside
the United States maintained for that purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; PROVIDED, HOWEVER, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
SECTION 4.3. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it
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shall, on or before each due date of the principal of, or interest or Additional
Amounts on, any of the Securities of that series, segregate and hold in trust
for the benefit of the Person entitled thereto a sum sufficient to pay the
principal or interest or Additional Amounts so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of,
or interest or Additional Amounts on, any Securities of that series, deposit
with any Paying Agent a sum sufficient to pay the principal or interest and
Additional Amounts so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, interest or Additional Amounts, and
(unless such Paying Agent is the Trustee) the Company shall promptly notify the
Trustee of its action or failure so to act.
The Company shall 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 shall:
(1) hold all sums held by it for the payment of the principal of or
interest or any Additional Amounts on Securities of that series
in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(2) give the Trustee notice of any Default by the Company in the
making of any payment of principal or interest or any Additional
Amounts 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.
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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
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
terms 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.
Except as otherwise provided in the form of Securities of any
particular series pursuant to the provisions of this Indenture, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or interest or any Additional Amounts
on any Security of any series and remaining unclaimed for two years after such
principal or interest has or Additional Amounts have become due and payable
shall be paid to the Company upon receipt of a Company Order to that effect or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security or any coupon appertaining thereto shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment, or to be
mailed to Holders of Registered Securities, or both, 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 or mailing nor shall be
later than one year after such principal or interest or Additional Amount has
become due and payable, any unclaimed balance of such money then remaining shall
be repaid to the Company.
SECTION 4.4. COMMISSION REPORTS; REPORTS TO TRUSTEE; REPORTS TO HOLDERS.
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So long as any Security is outstanding, the Company will:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports which the Company may be
required to file with the Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act (or copies of such portions thereof as may be prescribed by the
Commission by rules and regulations); or, if the Company is not required to file
with the Commission information, documents or reports pursuant to either Section
13 or Section 15(d) of the Exchange Act, then the Company will file with the
Trustee and mail to the Holders of the Securities, as the names and addresses of
such Holders appear upon the register of Securities, (i) annual reports
containing the information required by the Exchange Act to be contained in an
Annual Report on Form 10-K, (ii) quarterly reports containing the information
required by the Exchange Act to be contained in a Quarterly Report on Form 10-Q
and (iii) promptly after the occurrence of an event required to be therein
reported, such other reports containing information required by the Exchange Act
to be contained in a Current Report on Form 8-K.
(b) file with the Trustee and the Commission, in accordance with the
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants provided for in this Indenture as may
be required by such rules and regulations, including, in the case of annual
reports, if required by such rules and regulations, certificates or opinions of
independent public accountants, conforming to the requirements of Sections 13.4
and 13.5, as to compliance with conditions or covenants, compliance with which
is subject to verification by accountants; and
(c) mail to the Holders of the Registered Securities, as the names
and addresses of such Holders appear upon the register of Securities, in the
manner and to the extent provided in Section 7.6, such additional summaries of
any information, documents and reports required
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to be filed with the Trustee pursuant to the provisions of paragraphs (a) and
(b) of this Section 4.4 as may be required to be provided to such Holders by the
rules and regulations of the Commission under the provisions of the TIA.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such 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 4.5. COMPLIANCE CERTIFICATES.
Within 60 days after the close of each fiscal quarter of the Company
ending after the date hereof, the Company shall deliver to the Trustee a
statement signed by the Chairman of its Board of Directors, or its Vice Chairman
or its President or any Vice President and by the Treasurer or any Assistant
Treasurer or the Secretary or any Assistant Secretary of the Company (provided
that one of such signatories shall be the Company's principal executive officer,
principal financial officer or principal accounting officer), stating that in
the course of the performance by the signers of their duties as Officers of the
Company they would normally obtain knowledge of any Default by the Company and
whether or not they have obtained knowledge of any such Default, and, if so,
specifying each such Default of which the signers have knowledge and the nature
thereof and what action the Company is taking or proposes to take with respect
thereto. The Company shall also comply with TIA Section 314(a)(4).
SECTION 4.6. CORPORATE EXISTENCE.
Subject to the provisions of Article V, the Company will do or cause
to be done all things necessary to and will cause each of its Restricted
Subsidiaries to preserve and keep in full force and effect its corporate
existence, material rights (charter and statutory) and franchises of the Company
and each of its Restricted
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Subsidiaries; PROVIDED, HOWEVER, that the Company shall not be required to
preserve any such material right or franchise or the corporate existence of any
of its Subsidiaries if (a) the preservation thereof is no longer desirable in
the conduct of the business of the Company or such Subsidiary and (b) the loss
thereof is not disadvantageous in any material respect to the Holders of the
Securities.
SECTION 4.7. LIMITATION ON LIENS.
Subject to the provisions of Article VIII (to the extent they are
applicable to the Securities of any series) the Company will not, and will not
permit any of its Restricted Subsidiaries to, create, incur or otherwise cause
or suffer to exist or become effective any Liens of any kind upon any Principal
Property or any shares of stock or debt of any Restricted Subsidiary (whether
such Principal Property, shares of stock or indebtedness are now owned or
hereafter acquired) unless all payments due under this Indenture and the
Securities are secured on an equal and ratable basis with the obligation so
secured until such time as such obligation is no longer secured by a Lien,
except for Permitted Liens.
The covenant contained in this section will be subject to the
provision for exempted indebtedness in Section 4.9.
SECTION 4.8. LIMITATIONS ON SALE AND LEASEBACK TRANSACTIONS.
Subject to the provisions of Article VIII (to the extent they are
applicable to the Securities of any series), the Company will not, nor will it
permit any Restricted Subsidiary to, enter into any arrangement with any Person
providing for the leasing by the Company or any Restricted Subsidiary of any
Principal Property (whether such Principal Property is now owned or hereafter
acquired), except for temporary leases for a term, including any renewal, of not
more than five years and except for leases between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries, which Principal Property has been
or is to be sold or transferred by the Company or such Restricted Subsidiary to
such Person (hereinafter, a "Sale and Lease-
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Back Transaction"), unless either (i) the Company or such Restricted Subsidiary
would be entitled, in accordance with the provisions of Section 4.7 (other than
provisions with respect to exempted Indebtedness), to incur Indebtedness secured
by a lien on such property without equally and ratably securing the Securities,
or (ii) the Company within 180 days after the effective date of the Sale and
Lease-Back Transaction applies an amount equal to the Value of such transaction
to the voluntary retirement of its Funded Debt. For the purposes of this
Article, "Value" shall mean an amount equal to the greater of the net proceeds
of the sale or transfer of the property leased pursuant to such Sale and
Lease-Back Transaction, or the fair value in the opinion of the Board of
Directors of the leased property at the time of entering into such Sale and
Lease-Back Transaction. For the purposes of this Article IV, "Funded Debt"
shall mean indebtedness (including Securities) maturing by the terms thereof
more than one year after the original creation thereof.
The covenant contained in this Section will be subject to the
provision for exempted indebtedness in Section 4.9.
SECTION 4.9. EXEMPTED INDEBTEDNESS.
Notwithstanding the provisions contained in Sections 4.7 and 4.8, the
Company and its Restricted Subsidiaries may issue, assume, suffer to exist or
guarantee Indebtedness which would otherwise be subject to the limitation of
Section 4.7, without securing the Securities, or may enter into Sale and
Lease-Back Transactions which would otherwise be subject to the limitation of
Section 4.8, without retiring Funded Debt, or enter into a combination of such
transactions, if the sum of (i) the principal amount of all such Indebtedness
incurred after the date hereof, and which would otherwise be or have been
prohibited by the limitations of Section 4.7 or 4.8 and (ii) the aggregate Value
of all such Sale and Lease-Back Transactions after the date hereof does not at
any such time exceed 10% of the consolidated total assets of the Company and its
consolidated Subsidiaries as shown in the audited consolidated balance sheet
contained in the latest annual report to the shareholders of the Company.
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SECTION 4.10. WAIVER OF STAY; EXTENSION OF USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive the Company from paying all or any
portion of the principal of, or interest on or any Additional Amounts payable
with respect to the Securities as contemplated herein or in the Securities,
wherever enacted, now or at any time hereafter in force, or that may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) the Company 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.
SECTION 4.11. CALCULATION OF ORIGINAL ISSUE DISCOUNT.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on outstanding
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 of 1986, as amended from time to time.
ARTICLE V
SUCCESSORS
SECTION 5.1. WHEN COMPANY MAY MERGE, ETC.
The Company will not consolidate or merge with or into, or sell,
lease, convey or otherwise dispose of all or substantially all of its assets in
one transaction or a series of related transactions or assign any of its
obligations under this Indenture or the Securities to, any Person unless:
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(a) the entity formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale, lease, conveyance or
other disposition or assignment shall have been made (the "Surviving Entity"),
is a corporation organized and existing under the laws of the United States, any
state thereof or the District of Columbia;
(b) the Surviving Entity assumes by a supplemental indenture in a
form satisfactory to the Trustee all of the obligations of the Company under the
Securities and this Indenture; and
(c) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing.
The Company shall deliver to the Trustee prior to the consummation of
the proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
SECTION 5.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company or
any assignment of its obligations under this Indenture or the Securities in
accordance with Section 5.1, the Surviving Entity shall succeed to, and may be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation has been
named as the Company herein, and, except in the case of a lease, the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
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ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. EVENTS OF DEFAULT.
"Event of Default" is hereby defined for all purposes of this
Indenture and with respect to any series of Securities (except where the term is
otherwise defined for specific purposes) as any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the Company defaults in the payment of any installment of
interest on or any Additional Amounts payable in respect of any Security of that
series when and as the same shall become due and payable and such failure
continues for a period of 30 days;
(b) the Company defaults in the payment of the principal of any
Security of that series when and as the same shall become due and payable at
Stated Maturity, upon redemption or otherwise;
(c) the Company fails to perform or observe any of its other
covenants, conditions or agreements in this Indenture or in the Securities
(other than a covenant, condition or agreement a Default in whose performance or
whose breach is elsewhere in this Section specifically dealt with), and such
failure continues for a period of 90 days after the date on which written notice
of such Default has been given to the Company by the Trustee or to the Company
and to the Trustee by the Holders of not less than 25% of the principal amount
of the Securities of that series then outstanding under this Indenture;
(d) default in the payment of any scheduled principal of or interest
on any Indebtedness of the Company or any Subsidiary of the Company (other than
the Debt Securities of such series) aggregating more than $25 million in
principal amount, when due after giving effect to any
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applicable grace period, that results in such Indebtedness becoming due and
payable prior to the date on which it would otherwise become due and payable,
and such acceleration shall not have been rescinded or annulled, or such
Indebtedness shall not have been discharged;
(e) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company or any of its Subsidiaries
in an involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or
order adjudging the Company or any of its Subsidiaries 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 of its
Subsidiaries 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 of its Subsidiaries or of any substantial
part of their property, or ordering the winding up or liquidation of their
affairs, and the continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period 90 consecutive days;
or
(f) the commencement by the Company or any of its Subsidiaries 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 the
Company or any of its Subsidiaries to the entry of a decree or order for relief
in respect of the Company or any of its Subsidiaries 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 the Company or any of its Subsidiaries, or
the filing by the Company or any of its Subsidiaries of a petition or answer or
consent seeking reorganization or relief under any applicable federal or state
law, or the consent by the Company or any of its Subsidiaries to the filing of
such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of the
Company or
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any of its Subsidiaries or of any substantial part of their property, or the
making by the Company or any of its Subsidiaries of an assignment for the
benefit of creditors, or the admission by the Company or any of its Subsidiaries
in writing of their inability to pay their debts generally as they become due,
or the taking of corporate action by the Company or any of its Subsidiaries in
furtherance of any such action.
The Company shall deliver to the Trustee, within 5 days after the
occurrence thereof, an Officers' Certificate detailing any Default of which it
is aware, its status and what action the Company is taking or proposes to take
with respect thereto.
SECTION 6.2. ACCELERATION.
If an Event of Default specified in Section 6.1(e) or (f) shall occur
and be continuing, then the principal of (or, with respect to a series of
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series), and any accrued and unpaid interest
on and any Additional Amounts payable in respect of the Securities shall
immediately become due and payable without any declaration or other act on the
part of the Trustee or any Securityholder. If one or more Events of Default
specified in Sections 6.1(a) through (d) with respect to any series of
Securities at the time outstanding shall occur and be continuing, then, and in
each and every such case, either the Trustee, by notice in writing to the
Company, or the Holders of not less than 25% of the principal amount of the
Securities of that series then outstanding, by notice in writing to the Company
and the Trustee, may declare due and payable, if not already due and payable,
the principal of (or, with respect to a series of Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) plus any accrued interest on and any Additional Amounts
payable in respect of all of the Securities of that series; and upon any such
declaration all such amounts upon such Securities shall become and be
immediately due and payable, anything in this Indenture or in the Securities to
the contrary notwithstanding. This provision is subject to the condition that
if, after any declaration of acceleration
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and before Stated Maturity of the principal with respect to Securities of any
series, all arrears of interest and any Additional Amounts and the expenses of
the Trustee, its agents or counsel shall be paid by or for the account of the
Company, and all Defaults (other than the payment of principal that has been
declared due and payable) have been cured to the satisfaction of the Trustee,
then the Trustee shall, upon the written request of the Holders of a majority in
principal amount of the Securities of that series, waive such Default and
rescind or annul the declaration of acceleration; but no such waiver or
rescission or annulment shall extend to or affect any subsequent Default, or
impair any right consequent thereon.
SECTION 6.3. OTHER REMEDIES.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of, interest on or any Additional Amounts payable in
respect of the Securities of that series or to enforce the performance of any
provision of the Securities of that series or this Indenture. The Trustee may
maintain a proceeding even if it does not possess any of the Securities of that
series or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising
any right or remedy accruing upon any Event of Default shall not impair any such
right or remedy or constitute a waiver of or acquiescence in the Event of
Default. No remedy is exclusive of any other remedy. All available remedies
are cumulative.
SECTION 6.4. WAIVER OF PAST DEFAULTS.
Provided the applicable series of Securities shall not then be due and
payable by reason of a declaration pursuant to Section 6.2, the Holders of a
majority in principal amount of the Securities of any series at the time
outstanding 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 by providing written notice thereof to the Company and the
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Trustee, except a Default (i) in the payment of interest on, any Additional
Amounts payable in respect of or the principal of any Security of such series or
(ii) in respect of a covenant or provision hereof which under Article IX cannot
be modified or amended without the consent of the Holder of each outstanding
Security of such series affected. In the case of any such waiver, the Company,
the Trustee and the Holders of the Securities of such series shall be restored
to their former positions and rights hereunder, respectively; PROVIDED, that no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereto.
SECTION 6.5. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the Securities then
outstanding of any series may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or of exercising any
power or trust conferred upon the Trustee under this Indenture with respect to
the Securities of such series; PROVIDED, HOWEVER, that subject to the provisions
of Sections 7.1 and 7.2, the Trustee shall have the right to decline to follow
any such direction if the Trustee, advised by counsel, determines that the
action or proceeding so directed may not lawfully be taken or if the Trustee in
good faith shall by Responsible Officers determine that the action or proceeding
so directed would involve the Trustee in liability or that the Trustee is not
satisfactorily indemnified from the costs thereof.
SECTION 6.6. LIMITATION ON SUITS BY HOLDERS.
No Holder of any Security of any series or any coupon appertaining
thereto shall have the right to pursue a remedy with respect to this Indenture
or the Securities unless:
(1) such Holder gives to the Trustee notice of a continuing Event of
Default with respect to Securities of that series;
(2) the Holders of at least a majority in principal amount of the
Securities of that
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series make a request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee security or indemnity
satisfactory to the Trustee against any loss, liability or
expense; and
(4) the Trustee does not comply with the request within 30 days after
receipt of the request and the offer of security or indemnity.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.7. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Security or coupon to receive payment of principal of, interest
on and any Additional Amounts payable with respect to the Security or coupon, on
or after the respective due dates expressed in the Security or coupon, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of the Holder.
SECTION 6.8. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.1(a) or (b) occurs and
is continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Company for the whole amount of principal,
interest and any Additional Amounts remaining unpaid, together with interest on
overdue principal and, to the extent lawful, interest on overdue installments of
interest and any Additional Amounts, in each case at the rate or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities and 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
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Trustee, its agents and counsel and any other amounts due the Trustee under
Section 7.7.
SECTION 6.9. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee and the Securityholders allowed in any judicial proceedings relative to
the Company, its creditors or its property and the Trustee shall be entitled and
empowered to collect and receive any money or other property payable or
deliverable on any such claims and to distribute it, and any trustee, receiver,
liquidator, custodian or other similar official in any such judicial proceedings
is hereby authorized by each Securityholder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to Securityholders, to pay to the Trustee any amount due to 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 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Securityholder 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 any claim of any Securityholder in such proceeding.
SECTION 6.10. APPLICATION OF MONEY COLLECTED.
Any money or property collected by the Trustee with respect to any
series of the Securities under this Article VI shall be paid out by the Trustee
in the following order and, in the case of the distribution of moneys on account
of principal, interest or any Additional Amounts, upon presentation of such
Securities and coupons appertaining to such Securities in respect of which
monies have been collected (except that the Trustee may waive presentation of
Registered Securities when interest alone is to be paid), and stamping thereon
the payment, or issuing Securities of such series in reduced principal amounts
in
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exchange for the presented Securities of like series if only partially paid, and
upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection, and
reasonable compensation to the Trustee, its agents and counsel, and of all other
expenses, losses, and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith;
SECOND: In case the principal of the outstanding Securities of such
series shall not have become due and be unpaid, to the payment of interest on
and any Additional Amounts Payable with respect to such Securities, in the order
of the maturity of the installments of such interest and Additional Amounts,
with interest, to the extent lawful, upon the overdue installments of interest
and Additional Amounts at the rate or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in such Securities, such payments to be
made ratably to the Persons entitled thereto, without discrimination or
preferences;
THIRD: In case the principal of the outstanding Securities of such
series shall have become due, by declaration or otherwise, to the payment of the
whole amount then owing and unpaid upon such Securities for principal, interest
and any Additional Amounts, with interest at the rate or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in such Securities on
the overdue principal, and, to the extent lawful, on the overdue installments of
interest and Additional Amounts; and in case such monies shall be insufficient
to pay in full the whole amount so due and unpaid upon such Securities, then to
the payment of such principal, interest and any Additional Amounts, ratably,
without preference or priority of any kind, to the aggregate of such principal
and accrued and unpaid interest and Additional Amounts; and
FOURTH: In case the Trustee shall retain possession of any funds
after all obligations of the Company hereunder have been fully paid and
satisfied, such funds shall be paid to the Company, its successors or assigns.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section.
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At least 15 days before such record date, the Company shall mail to each
Securityholder and the Trustee a notice that states the record date, the payment
date and the amount to be paid.
SECTION 6.11. 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 or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit instituted by the Trustee, a suit
instituted by a Holder pursuant to Section 6.7 or a suit instituted by Holders
of more than 10% in principal amount of the Securities then outstanding. This
Section 6.11 shall be in lieu of Section 315(e) of the TIA and said Section
315(e) is hereby expressly excluded from this Indenture, as permitted by the
TIA.
SECTION 6.12. DISCONTINUANCE OR ABANDONMENT OF PROCEEDINGS.
If the Trustee or any Holder shall have proceeded to enforce any right
under this Indenture, and such proceedings shall have been discontinued or
abandoned because of waiver, or for any other reason, or shall have been
determined adversely to the Trustee or such Holder, then, and in any such case,
the Company and the Trustee and such Holder or Holders shall each be restored to
its former position and rights hereunder, and all rights, remedies and powers of
the Trustee and the Holders shall continue as though no such proceedings had
been taken.
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ARTICLE VII
TRUSTEE
SECTION 7.1. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee, subject to paragraph (e) below, shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in its
exercise as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) 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
(ii) 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. However,
in the case of any opinions or certificates which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b) of this
Section 7.1;
(ii) The Trustee shall not be liable for any error of judgment made in
good faith by a Responsible
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Officer, unless it is proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to
paragraphs(a), (b) and (c) of this Section.
(e) 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 the Trustee shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to
determine the maximum interest rate permissible under applicable law.
(h) 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 and to the provisions of the TIA.
SECTION 7.2. RIGHTS OF TRUSTEE.
(a) The Trustee may rely on and shall be protected in acting or
refraining from acting on any document believed by it to be genuine and to have
been signed or presented by the proper person. The Trustee need not investigate
any fact or matter stated in the document.
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(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate and an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel of its selection and the advice of such counsel or any Opinion of
Counsel with respect to legal matters relating to this Indenture and the
Securities 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
accordance with the advice or opinion of such counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers conferred upon it hereunder; PROVIDED, HOWEVER, that the Trustee's
conduct does not constitute willful misconduct, negligence or bad faith.
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction.
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney,
at the sole cost of the Company and shall incur no liability or
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additional liability of any kind by reason of such inquiry or investigation.
SECTION 7.3. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Paying
Agent, Registrar or co-registrar may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Securities; it shall not
be accountable for the Company's use of the proceeds from the sale of the
Securities; and it shall not be responsible for any statement of the Company in
this Indenture or in any document issued in connection with the sale of the
Securities or in the Securities other than the Trustee's certificate of
authentication.
SECTION 7.5. NOTICE OF DEFAULTS.
If a Default occurs with respect to Securities of any series and is
continuing and if it is known to the Trustee, the Trustee shall give to each
Securityholder of such series a notice of the Default within 90 days after it
occurs in the manner and to the extent provided in TIA 313(c), and otherwise as
provided in Section 13.2 hereof. Except in the case of a Default in payment of
the principal of, interest on and any Additional Amount payable with respect to
any Security (including payments pursuant to a redemption or repurchase of the
Securities pursuant hereto), the Trustee may withhold the notice if and so long
as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of Securityholders.
The Trustee shall not be deemed to have knowledge of any Default or
Event of Default except (i) a Default
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under Section 6.1(a) or (b) so long as the Trustee is Paying Agent or (ii) any
Default or Event of Default of which the Trustee shall have received written
notification or a Responsible Officer charged with the administration of this
Indenture shall have obtained actual knowledge, and such notification shall not
be deemed to include receipt of information obtained in any report or other
documents furnished under Section 4.4 of this Indenture, which reports and
documents the Trustee shall have no duty to examine.
SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each January 1 and July 1 beginning with the
January 1 following the date of this Indenture, the Trustee shall mail to each
Holder of a Registered Security a brief report dated as of such reporting date
if required by, and in compliance with, TIA Section 313(a). The Trustee also
shall comply with TIA Section 313(b). The Trustee shall also transmit by mail
all reports as required by TIA Section 313(c).
Commencing at the time this Indenture is qualified under the TIA, a
copy of each report at the time of its mailing to Securityholders shall be filed
with the Commission and each securities exchange, if any, on which the
Securities are listed. The Company agrees to notify promptly the Trustee
whenever the Securities become listed on any securities exchange and of any
delisting thereof.
SECTION 7.7. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed to in writing from time to time between the
Company and the Trustee for all services rendered by it hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable disbursements, advances and expenses incurred or made
by the Trustee in accordance with any provision of this Indenture. Such
expenses shall include the reasonable compensation and the disbursements,
advances and expenses of the Trustee's agents and counsel, except to the extent
any such
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disbursement, advance or expense may be attributable to its negligence or bad
faith.
The Company shall indemnify the Trustee and its directors, officers,
agents and employees against any and all loss, liability, damage, claim or
expense, including taxes (other than taxes based upon, measured by, or
determined by the income of Trustee), (including attorneys' fees and expenses)
incurred by it or such officer, director, agent or employee in connection with
the acceptance or administration of its duties under this Indenture, except as
set forth in the next paragraph. The Trustee shall notify the Company promptly
of any claim for which it may seek indemnity. The Company shall defend the
claim and the Trustee or such officer, director, agent or employee shall
cooperate in the defense. The Trustee or such officer, director, agent or
employee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
The Company need not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Trustee through the Trustee's own
willful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Securities on all money or property held
or collected by the Trustee other than money or property held in trust to pay
the principal of, interest on or any Additional Amounts payable with respect to
particular Securities. The Company's payment obligations pursuant to this
Section 7.7 shall survive the resignation or replacement of the Trustee and any
discharge or defeasance under Sections 8.1 and 8.2.
When the Trustee incurs expenses after the occurrence of an Event of
Default specified in Section 6.1(e) or (f), the expenses are intended to
constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section shall survive the termination of this
Indenture.
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SECTION 7.8. REPLACEMENT OF TRUSTEE.
The Trustee may resign at any time by so notifying the Company;
PROVIDED, HOWEVER, no such resignation shall be effective until a successor
Trustee has accepted its appointment pursuant to this Section 7.8. The Holders
of a majority in principal amount of the then outstanding Securities may remove
the Trustee by so notifying the Trustee and the Company. The Company shall
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) receiver or public officer takes charge of the Trustee or its
property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the Lien
provided for in Section 7.7. Notwithstanding
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replacement of the Trustee pursuant to this Section 7.8, the Company's
obligations under Section 7.7 shall continue for the benefit of the retiring
Trustee.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the then outstanding Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
SECTION 7.9. SUCCESSOR TRUSTEE BY MERGER.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or
transferee corporation or banking association without any further act shall be
the successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
The Trustee shall at all times satisfy the requirements of TIA Section
310(a). The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
SECTION 7.12. 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.
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ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. DISCHARGE OF INDENTURE; DEFEASANCE.
(a) This Indenture shall cease to be of further effect with respect
to a series of Securities (except that the Company's obligations under Section
7.7 and the Trustee's and Paying Agent's obligations under Section 8.4 shall
survive) when (a) all outstanding Securities of such series theretofore
authenticated and issued have been delivered (other than destroyed, lost or
stolen Securities which have been replaced or paid pursuant to Section 2.6) to
the Trustee for cancellation and (b) the Company has paid all sums payable
hereunder.
(b) Subject to Sections 8.1(c), 8.2 and 8.5, the Company at any time
may terminate (i) all its obligations under the Securities of any series and
this Indenture with respect to such series of Securities ("legal defeasance
option") or (ii) its obligations under Sections 4.7 and 4.8 with respect to any
series of Securities ("covenant defeasance option"). The Company may exercise
its legal defeasance option notwithstanding its prior exercise of its covenant
defeasance option.
If the Company exercises its legal defeasance option, payment of the
Securities of the applicable series may not be accelerated because of an Event
of Default.
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.3, 2.4, 2.5, 2.6, 7.7, 8.4 and 8.5 and Article XI and
Article XII shall survive until the Securities have been paid in full.
Thereafter, the Company's obligations in Sections 7.7 and 8.4 shall survive.
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SECTION 8.2. CONDITIONS TO DEFEASANCE.
The Company may exercise its legal defeasance option or its covenant
defeasance option with respect to a series of Securities only if the following
conditions are satisfied:
(a) the Company has irrevocably deposited or caused to be deposited
in trust for the benefit of the Holders of such series with the Trustee or a
Paying Agent or a trustee satisfactory to the Trustee and the Company, under the
terms of an irrevocable trust agreement in form and substance satisfactory to
the Trustee and any such Paying Agent, (i) money in an or Eligible Obligations
amount sufficient, or (ii) U.S. Government Obligations that shall be payable as
to principal and interest in such amounts and at such times as are sufficient,
in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee (without
consideration of any reinvestment of such interest), or (iii) any combination
thereof in an amount sufficient, to pay the principal of, interest on and any
Additional Amounts payable with respect to the outstanding Securities of such
series on the dates such installments are due to redemption or Stated Maturity,
(b) the trustee of the irrevocable trust shall have been irrevocably instructed
to pay such money or the proceeds of such U.S. Government Obligations or
Eligible Obligations to the Trustee and (c) the Trustee or Paying Agent shall
have been irrevocably instructed in writing to apply the deposited money and the
proceeds from U.S. Government Obligations or Eligible Obligations in accordance
with the terms of this Indenture and the terms of the Securities of such series
to the payment of principal of, interest on and any Additional Amounts payable
with respect to the Securities of such series.
(b) such deposit described in clause (a) of this Section 8.2 will not
result in a breach or violation of, or constitute a Default under, any other
agreement or instrument to which the Company is a party or by which it is bound;
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(c) no Default or Event of Default shall have occurred and be
continuing (i) as of the date of such deposit or (ii) insofar as Sections 6.1(e)
and 6.1(f) 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 clause (ii) is a
condition subsequent and shall not be deemed satisfied until the expiration of
such period);
(d) the Company has paid or caused to be paid all sums currently due
and payable by the Company hereunder and under the Securities with respect to
such series;
(e) such defeasance shall not cause or permit any Securities then
listed on any national securities exchange to be delisted;
(f) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent provided
for herein relating to the termination by the Company of its obligations as
provided in this Section 8.2 have been complied with;
(g) in the case of the legal defeasance option, the Company has
delivered to the Trustee either (i) a ruling received from the Internal Revenue
Service to the effect that, or (ii) an Opinion of Counsel by recognized counsel
who is not an employee of the Company stating that, since the date first set
forth hereinabove, there has been a change in the applicable federal income tax
law, and based upon either case (i) or (ii) such Opinion of Counsel shall
confirm that, the Holders of the Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of the
Company's exercise of its legal defeasance option under this Section 8.2 and
will be subject to federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such legal defeasance
option had not been exercised; and
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(h) in the case of the covenant defeasance option, the Company has
delivered to the Trustee either (i) a ruling received from the Internal Revenue
Service to the effect that, or (ii) an Opinion of Counsel by recognized counsel
who is not an employee of the Company stating that, the Holders of the
Securities of such series will not recognize income, gain or loss for federal
income tax purposes as a result of the Company's exercise of its covenant
defeasance option under this paragraph and will be subject to federal income tax
on the same amount and in the same manner and at the same times as would have
been the case if such covenant defeasance option had not been exercised.
SECTION 8.3. APPLICATION OF TRUST MONEY.
The Trustee or a trustee satisfactory to the Trustee and the Company
shall hold in trust money, U.S. Government Obligations or Eligible obligations
deposited with it pursuant to Section 8.2. It shall apply the deposited money
and the money from U.S. Government Obligations and Eligible Obligations through
the Paying Agent and in accordance with this Indenture to the payment of
principal of, interest on and any Additional Amounts payable with respect to the
Securities.
SECTION 8.4. REPAYMENT TO COMPANY.
The Trustee and the Paying Agent shall promptly turn over to the
Company upon written request any money, U.S. Government Obligations or Eligible
Obligations held by them in trust pursuant to Section 8.2 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 such
defeasance, in accordance with the provisions of this Indenture.
The Trustee or the Paying Agent shall pay promptly to the Company upon
written request any money held by them for the payment of principal, interest or
Additional Amounts that remains unclaimed for two years after the date upon
which such payment shall have become due, unless otherwise
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required by mandatory provisions of applicable escheat or abandoned or unclaimed
property law (except that with respect to any amounts then held by the Company
in trust as its own Paying Agent no such request need be given and at such time
the Company shall be discharged from its duties to hold such money in trust as
Paying Agent). After payment to the Company, Securityholders entitled to the
money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person, and all liability
of the Trustee and such Paying Agent with respect to such money shall cease.
SECTION 8.5. REINSTATEMENT OF COMPANY'S OBLIGATIONS.
If the Trustee or Paying Agent is unable to apply any money, U.S.
Government Obligations or Eligible Obligations in accordance with Section 8.2 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the
Securities of the applicable series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.2 until such time as the Trustee or
Paying Agent is permitted to apply all such money, U.S. Government Obligations
or Eligible Obligations in accordance with Section 8.2; PROVIDED, HOWEVER, that
if the Company has made any payment of interest on, Additional Amounts payable
with respect to or principal of any Securities because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money, U.S. Government
Obligations or Eligible Obligations held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS AND WAIVER
SECTION 9.l. WITHOUT CONSENT OF HOLDERS.
The Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto to amend this
Indenture or
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the Securities with respect to a particular series without prior notice to or
the consent of any Securityholder of such series:
(1) to cure any ambiguity, omission, defect or inconsistency
(provided that no such action shall adversely affect the
interests of the Securityholders);
(2) to comply with Article V;
(3) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the TIA as then in
effect;
(4) to provide for uncertificated Securities in addition to or in
place of certificated Securities; PROVIDED, HOWEVER, that the
uncertificated Securities are issued in registered form for
purposes of Section 163(f) of the Internal Revenue Code or in a
manner such that the uncertificated Securities are described in
Section 163(f)(2) of the Internal Revenue Code;
(5) to make any change that does not materially adversely affect the
legal rights of any Securityholder under this Indenture as then
in effect;
(6) to secure the Securities and to make intercreditor arrangements
with respect to any such security, unless the incurrence of such
obligations or the security thereof is prohibited by this
Indenture;
(7) to evidence or to provide for a replacement Trustee under Section
7.8; or
(8) to add to the covenants and agreements of the Company for the
benefit of all of the Holders of all of the Securities with
respect to a series (and if such covenants are to be for
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the benefit of less than all series of Securities, stating that
such covenants are being included solely for the benefit of such
series) and to surrender any right or power herein reserved to
the Company.
After an amendment under this Section becomes effective, the Company
shall give to Securityholders a notice briefly describing the substance thereof
in the manner as provided in Section 13.2. The failure to give such notice to
all Securityholders, or any defect therein, shall not impair or affect the
validity of any supplemental indenture.
SECTION 9.2. WITH CONSENT OF HOLDERS.
The Company, when authorized by a Board Resolution, and the Trustee
may enter into one or more supplemental indentures to amend this Indenture or
the Securities with respect to a particular series with the written consent of
the Holders of a majority of the principal amount of the then outstanding
Securities of such series. The Holders of a majority in principal amount of the
then outstanding Securities of a particular series may waive compliance by the
Company with any provision of this Indenture or the Securities with respect to
such series without prior notice to any other Securityholder.
Notwithstanding the first paragraph of this Section 9.2, without the
consent of each Securityholder affected, an amendment or waiver under this
Section may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment or waiver;
(2) reduce the rate of or change the time for payment of interest or
Additional Amounts, including default interest, on any Security;
(3) reduce the principal of or change the Stated Maturity of any
Security or alter the provisions with respect to redemption
pursuant to Section 3.8;
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(4) make any Security payable in money other than that stated in the
Security;
(5) make any change in this paragraph of this Section 9.2;
(6) make any change in this Indenture that adversely affects ranking
of the Securities; or
(7) make any change in Section 6.4 or 6.7.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver but
it shall be sufficient if such consent approves the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has been included solely for the benefit
of one or more 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.
Any amendment shall be effective upon certification to the Trustee by
the Company or an agent of the Company that such amendment has been authorized
by the Company and that the consent of the majority in principal amount of the
Securities has been obtained unless such consents specify that they shall become
effective at a later date, in which case such amendment shall become effective
in accordance with the terms of such consent.
After an amendment or waiver under this Section becomes effective, the
Company shall give to Securityholders a notice briefly describing the substance
thereof in the manner as provided in Section 13.2. The failure to give such
notice to all Securityholders, or any defect therein, shall not impair or affect
the validity of any supplemental indenture.
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SECTION 9.3. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to this Indenture or the Securities or waiver of the
provisions hereof or thereof shall be set forth in a supplemental indenture that
complies with the TIA as then in effect.
SECTION 9.4. REVOCATION AND EFFECT OF CONSENTS AND WAIVERS.
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of that Security or portion of the Security that evidences the same debt
as the consenting Holder's Security, even if notation of the consent or waiver
is not made on the Security. However, any such Holder or subsequent Holder may
revoke the consent or waiver as to such Holder's Security or portion of the
Security if the Trustee receives written notice of revocation before the date
the amendment or waiver becomes effective.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment or
waiver. If a record date is fixed, then notwithstanding the next to last
sentence of the immediately preceding paragraph, those persons who were Holders
at such record date (or their duly designated proxies), and only those persons,
shall be entitled to consent to such amendment or waiver or to revoke any
consent previously given, whether or not such persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 120 days after such record date.
After an amendment or waiver becomes effective, it shall bind every
Securityholder, subject to the fourth paragraph of Section 9.2 and unless it
makes a change described in any of clauses (1) through (7) of Section 9.2. In
that case, the amendment or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or a portion of a
Security that evidences the same debt as the consenting Holder's Security.
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SECTION 9.5. NOTATION ON OR EXCHANGE OF SECURITIES.
If a supplemental indenture changes the terms of a Security, the
Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security regarding the
changed terms and return it to the Holder. Alternatively, if the Company shall
so determine, the Company in exchange for all Securities may issue and the
Trustee shall authenticate new Securities of the same series that reflect the
changed terms.
SECTION 9.6. TRUSTEE TO SIGN AMENDMENTS.
Upon the written request of the Company, accompanied by a Board
Resolution authorizing the execution of a supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of the Securityholders if
such consent shall be required under Section 9.2, the Trustee shall sign any
supplemental indenture authorized pursuant to this Article IX; PROVIDED, that
the Trustee shall not be obligated to sign any supplemental indenture that
adversely affects the Trustee's rights, duties, liabilities or immunities. In
signing such supplemental indenture, the Trustee shall be entitled to receive
and, subject to Section 7.1, shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that such amendment is
authorized or permitted by this Indenture, that it is not inconsistent herewith,
and that it will be valid and binding upon the Company in accordance with its
terms.
ARTICLE X
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 10.1. APPLICABILITY OF ARTICLE.
Securities of any series which are repayable at the option of the
Holders thereof before their maturity shall be repaid in accordance with the
terms of the Securities of such series. The repayment of any principal amount
of Securities pursuant to such option of the Holder
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to require repayment of Securities before their maturity shall not operate as a
payment, redemption or satisfaction of the indebtedness represented by such
Securities unless and until the Company, at its option, shall deliver or
surrender the same to the Trustee with a directive that such Securities be
cancelled. Notwithstanding anything to the contrary contained in this Article
X, in connection with any repayment of Securities, the Company may arrange for
the purchase of any Securities by an agreement with one or more investment
bankers or other purchasers to purchase such Securities by paying to the Holders
of such Securities on or before the close of business on the repayment date an
amount not less than the repayment price payable by the Company on repayment of
such Securities, and the obligation of the Company to pay the repayment price of
such Securities shall be satisfied and discharged to the extent such payment is
so paid by such purchasers.
ARTICLE XI
SINKING FUNDS
SECTION 11.1. APPLICABILITY OF ARTICLE.
The provisions of this Article XI shall be applicable to any sinking
fund for the retirement of Securities of a series, except as otherwise permitted
or required by any form of Security of such series issued pursuant to this
Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is referred to in this Article XI as a
"mandatory sinking fund payment," and any payment in excess of such minimum
amount provided for by the terms of Securities of such 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 11.2. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
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SECTION 11.2. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may, in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series to be made pursuant
to the terms of such Securities as provided for by the terms of such series (1)
deliver outstanding Securities of such series (other than any of such Securities
previously called for redemption or any of such Securities in respect of which
cash shall have been released to the Company), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (2) apply as a credit Securities of such series which have been
redeemed either at the election of the Company pursuant to the terms of such
series of Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, provided that such
series of 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. If as a result of the delivery or credit of Securities of any
series in lieu of cash payments pursuant to this Section 11.2, the principal
amount of Securities of such series to be redeemed in order to exhaust the
aforesaid cash payment shall be less than $100,000, the Trustee need not call
Securities of such series for redemption, except upon Company request, and such
cash payment shall be held by the Trustee or a Paying Agent for Securities of
that series and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall at the request of the
Company from time to time pay over and deliver to the Company any cash payment
so being held by the Trustee or such Paying Agent upon delivery by the Company
to the Trustee of Securities purchased by the Company having an unpaid principal
amount equal to the cash payment requested to be released to the Company.
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SECTION 11.3. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory 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 of
Securities of that series pursuant to Section 11.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
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 3.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 3.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.5 and 3.6.
ARTICLE XII
CONVERSION OF SECURITIES
SECTION 12.1. APPLICABILITY OF ARTICLE.
The provisions of this Article XII shall be applicable to the
Securities of any series which are convertible into Common Stock or, if so
provided in a Board Resolution, Officers' Certificate or executed supplemental
indenture referred to in Section 2.1 by or pursuant to which the form and terms
of the Securities of such series were established, cash in lieu thereof, as
provided by the terms of the Securities of such series.
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SECTION 12.2. EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security to the Conversion Agent
at any time during usual business hours at its office or agency maintained for
the purpose as provided in Section 2.3, accompanied by a fully executed written
notice, in substantially the form set forth on the reverse of the Security, that
the Holder elects to convert such Security or a stated portion thereof
constituting a multiple of $1,000 in principal amount and, if such Security is
surrendered for conversion during the period between the close of business on
any record date for such Security and the opening of business on the related
interest payment date and has not been called for redemption on a Redemption
Date within such period (or on such interest payment date), accompanied also by
payment of an amount equal to the interest payable on such interest payment date
on the portion of the principal amount of the Security being surrendered for
conversion. No interest shall be payable on any Security called for redemption
which is converted between the record date and the opening of business of the
next succeeding interest payment date. Such notice shall also state the name or
names (and address) in which the certificate or certificates for shares of
Common Stock shall be issued (or to whom payment in cash in lieu of Common Stock
shall be made). Securities surrendered for conversion shall (if so required by
the Company or the Conversion Agent) be duly endorsed by, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company and the Conversion Agent duly executed by, the Holder or his attorney
duly authorized in writing. As promptly as practicable after the receipt of
such notice and the surrender of such Security as aforesaid, the Company shall,
subject to the provisions of Section 12.7, issue and deliver at such office or
agency to such Holder, or on his written order, a certificate or certificates
for the number of full shares of Common Stock issuable on conversion of such
Security in accordance with the provisions of such Security and cash, as
provided in Section 12.3, in respect of any fraction of a share of Common Stock
otherwise issuable upon such conversion or, if so provided in a Board
Resolution, Officers' Certificate or executed supplemental indenture referred to
in Section 2.1 by or pursuant to which
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the form and terms of the Securities of such Series were established, cash , in
lieu of shares of Common Stock. Such conversion shall be at the Conversion
Price in effect, and shall be deemed to have been effected, immediately prior to
the close of business on the date (herein called the "Date of Conversion") on
which such notice in proper form shall have been received by the Conversion
Agent and such Security shall have been surrendered as aforesaid, and the Person
or Persons in whose name or names any certificate or certificates for shares of
Common Stock shall be issuable, if any, upon such conversion shall be deemed to
have become on the Date of Conversion the holder or holders 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 or Persons in whose name or names the certificate or
certificates for such shares are to be issued, if any, as the record holder or
holders thereof for all purposes at the opening of business on the next
succeeding day on which such stock transfer books are open but such conversion
shall nevertheless be at the Conversion Price in effect at the close of business
on the date when such Security shall have been so surrendered with the
conversion notice in proper form. In the case of conversion of a portion, but
less than all, of a Security, the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder thereof, at the
expense of the Company, a Security or Securities in the aggregate principal
amount of the unconverted portion of the Security surrendered. Except as
otherwise expressly provided in this Indenture, no payment or adjustment shall
be made for interest accrued on any Security (or portion thereof) converted or
for dividends or distributions on any Common Stock issued upon conversion of any
Security. The right, if any, of a Holder of any Security to cause the Company
to redeem, purchase or repay such Security shall terminate upon receipt by the
Company of any notice of conversion of such Security.
SECTION 12.3. FRACTIONAL INTERESTS.
No fractions of shares or scrip representing fractions of shares shall
be issued upon conversion of Securities. If more than one Security shall be
surrendered for conversion at one time by the same Holder, the number of
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full shares which shall be issuable upon conversion thereof shall be computed on
the basis of the aggregate principal amount of the Securities so surrendered.
If any fraction of a share of Common Stock would, except for the provisions of
this Section 12.3, be issuable on the conversion of any Security or Securities,
the Company shall make payment in lieu thereof in cash equal to the value of
such fraction computed on the basis of the Last Sale Price of one share of
Common Stock on the most recent Trading Day prior to the Date of Conversion.
"Last Sale Price" on any Trading Day shall mean (i) the closing price
regular way (or, if no closing price is reported the average of the bid and
asked prices) as reported on the New York Stock Exchange Composite Tape, or (ii)
if on such Trading Day the Common Stock is not listed or admitted to trading on
such exchange, the closing price regular way (or, if no closing price is
reported the average of the bid and asked prices) on the principal national
securities exchange on which the Common Stock is listed or admitted, or (iii) if
not listed or admitted to trading on any national securities exchange on such
Trading Day, then the average of the closing bid and asked prices as reported
through the National Association of Securities Dealers, Inc. on its NASDAQ
National Market System or NASDAQ System or a similar organization if NASDAQ is
no longer reporting information, or (iv) if the Common Stock is not listed or
admitted to trading on any national securities exchange or quoted on such
National Market System or NASDAQ System on such Trading Day, then the average of
the closing bid and asked prices in the over-the-counter market as furnished by
any New York Stock Exchange member firm selected from time to time by the
Company for that purpose, or (v) if not quoted by any such organization on such
Trading Day, the fair value of such Common Stock on such Trading Day, as
determined by the Board of Directors. The term "Trading Day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday, other than any day on which
securities are not traded on the applicable above mentioned exchanges or
markets.
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SECTION 12.4. ADJUSTMENT OF CONVERSION PRICE.
The "Conversion Price" for a Series of Securities shall be as set
forth in a Board Resolution, Officers' Certificate or executed supplemental
indenture referred to in Section 2.1 by or pursuant to which the form and terms
of the Securities of such Series were established, and shall be subject to
adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend or make a
distribution in shares of Common Stock to holders of Common Stock, (2) subdivide
its outstanding shares of Common Stock into a greater number of shares of Common
Stock, (3) combine its outstanding shares of Common Stock into a smaller number
of shares of Common Stock or (4) issue by reclassification of its Common Stock
any shares of capital stock of the Company, the Conversion Price in effect
immediately prior to such action 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 or other capital stock of the Company which he
would have owned immediately following such action had such Security been
converted immediately prior thereto. An adjustment made pursuant to this
subsection (a) shall become effective immediately, except as provided in
subsection (e) below, after the record date in the case of a dividend or
distribution and shall become effective immediately after the effective date in
the case of a subdivision, combination or reclassification. If as a result of
an adjustment made pursuant to this subsection (a), the Holder of any Security
thereafter surrendered for conversion shall become entitled to receive shares of
two or more classes of capital stock (including shares of Common Stock and other
capital stock) of the Company, the Board of Directors (whose determination shall
be conclusive and shall be described in a statement filed with the Trustee)
shall determine the allocation of the adjusted Conversion Price between or among
shares of such classes of capital stock or shares of Common Stock and other
capital stock.
(b) In case the Company shall issue rights or warrants to all holders
of Common Stock entitling them (for a period not exceeding 45 days from the date
of such issuance) to subscribe for or purchase shares of Common
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Stock or Securities convertible into Common Stock at a price per share less than
the current market price per share (as determined pursuant to subsection (d)
below) of the Common Stock on the record date mentioned below, the Conversion
Price shall be adjusted to a price, computed to the nearest cent, so that the
same shall equal the price determined by multiplying:
(1) the Conversion Price in effect immediately prior to the date of
issuance of such rights or warrants by
(2) a fraction, of which (i) the numerator shall be (A) the number of
shares of Common Stock outstanding on the date of issuance of
such rights or warrants, immediately prior to such issuance, plus
(B) the number of shares of Common Stock which the aggregate
offering price of the total number of shares of Common Stock (or
the aggregate conversion price of the convertible securities) so
offered for subscription or purchase would purchase at such
current market price (determined by multiplying such total number
of shares by the exercise price of such rights or warrants and
dividing the product so obtained by such current market price),
and of which (ii) the denominator shall be (A) the number of
shares of Common Stock outstanding on the date of issuance of
such rights or warrants, immediately prior to such issuance, plus
(B) the number of additional shares of Common Stock (or into
which the convertible securities are convertible) which are so
offered for subscription or purchase.
Such adjustment shall become effective immediately, except as provided in
subsection (e) below, after the record date for the determination of holders
entitled to receive such rights or warrants.
(c) In case the Company shall distribute to substantially all holders
of Common Stock, evidences of indebtedness, equity securities (including equity
interests
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in the Company's Subsidiaries) other than common stock, or other assets (other
than cash dividends paid out of surplus of the Company), or shall distribute to
substantially all holders of Common Stock rights or warrants to-subscribe for
securities (other than those referred to in Subsection (b) above) 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 date of such distribution by a fraction of which the numerator
shall be the current market price per share (determined as provided in
subsection (d) below) of the Common Stock on the record date mentioned below
less the then fair market value (as determined by the Board of Directors, whose
determination shall, if made in good faith, be conclusive evidence of such fair
market value) of the portion of the assets so distributed or of such
subscription rights or warrants applicable to one share of Common Stock, and of
which the denominator shall be such current market price per share of the Common
Stock. Such adjustment shall become effective immediately, except as provided
in subsection (e) below, after the record date for the determination of
stockholders entitled to receive such distribution.
(d) For the purpose of any computation under subsections (b) and (c)
above, the current market price per share of Common Stock on any date shall be
deemed to be the average of the Last Sale Prices for the 30 consecutive Trading
Days commencing 45 Trading Days before the date in question.
(e) In any case in which this Section 12.4 shall require that an
adjustment be made immediately following a record date, the Company may elect to
defer the effectiveness of such adjustment (but in no event until a date later
than the effective time of the event giving rise to such adjustment), in which
case the Company shall, with respect to any Security converted after such record
date and before such adjustment shall have become effective, (i) defer paying
any cash payment pursuant to Section 12.3 or issuing to the Holder of such
Security the number of shares of Common Stock and other capital stock of the
Company issuable upon such conversion in excess of the number of shares of
Common Stock and other capital stock of the
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Company issuable thereupon only on the basis of the Conversion Price prior to
adjustment and (ii), not later than five Business Days after such adjustment
shall have become effective, pay to such Holder the appropriate cash payment
pursuant to Section 12.3 and issue to such Holder the additional shares of
Common Stock and other capital stock of the Company issuable on such conversion.
(f) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% of the
Conversion Price; PROVIDED, that any adjustments which by reason of this
subsection (f) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment and provided, further , that
adjustment shall be required and made in accordance with the provisions of this
Article XII (other than this subsection (f)) not later than such time as may be
required in order to preserve the tax-free nature of a distribution to the
holders of Securities or Common Stock. All calculations under this Article XII
shall be made to the nearest cent or to the nearest one-hundredth of a share, as
the case may be.
(g) Anything in this Section 12.4 to the contrary notwithstanding, no
adjustment need be made for rights to purchase Common Stock pursuant to a
Company plan for reinvestment of dividends or interest or for rights to purchase
Capital Stock pursuant to any future dividend or distribution which the Company
determines to be comparable in purpose and in effect to the dividend and
subsequent distribution of Rights contemplated by the Rights Agreement and no
adjustment need be made for a change in the par value or no par value of the
Common Stock.
(h) Whenever the Conversion Price is adjusted as herein provided, the
Company shall promptly (i) file with the Trustee and each Conversion Agent 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, and (ii) mail or cause to be mailed a notice of such adjustment to
each Holder of Securities at his address as the same appears on either the
registry books of the Company
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or in the filings described in Section 2.4. Anything in this Section 12.4 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 12.4 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.
SECTION 12.5. CONTINUATION OF CONVERSION PRIVILEGE IN CASE OF MERGER,
CONSOLIDATION OR SALE OF ASSETS.
If any of the following shall occur, namely: (a) any consolidation or
merger of the Company as a result of which the holders of Common Stock shall be
entitled to receive stock, other securities or other assets (including cash)
with respect to or in exchange for Common Stock; or (b) any sale or conveyance
of all or substantially all of the property or business of the Company as an
entirety, then the Company, or such successor or purchasing corporation, as the
case may be, shall, as a condition precedent to such consolidation, merger, sale
or conveyance, execute and deliver to the Trustee a supplemental indenture
(which shall conform to the TIA as in force at the date of the execution
thereof) providing that the Holder of each convertible Security then outstanding
shall have the right to convert such Security into the kind and amount of shares
of stock and other securities and property (including cash) receivable upon such
consolidation, merger, 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, sale or conveyance. Such
supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article
XII. If, in the case of any such consolidation, merger, sale or conveyance, the
stock or other securities and property (including cash) receivable thereupon by
a holder of shares of Common Stock includes shares of stock or other securities
and property (including cash) of a corporation other than the successor or
purchasing corporation, as the case may be, in such
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consolidation, merger, sale or conveyance, then such supplemental indenture
shall also be executed by such other corporation and shall contain such
additional provisions to protect the interests of the Holders of the Securities
as the Board of Directors shall reasonably consider necessary by reason of the
foregoing. The provisions of this Section 12.5 shall similarly apply to
successive consolidations, mergers, sales or conveyances.
Within 30 days after the execution of such supplemental indenture the
Company shall give notice of the execution of such supplemental indenture, with
respect to Registered Securities affected by such supplemental indenture, by
mailing a notice of the execution of such supplemental indenture to each Holder
of Registered Securities at such Holder's address as it appears on the
Securities register maintained by the Registrar and, with respect to Bearer
Securities affected by such supplemental indenture, by publishing in an
Authorized Newspaper notice of the execution of such supplemental indenture on
two separate days.
Neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property (including cash) receivable by Holders of
Securities upon the conversion of their Securities after any such consolidation,
merger, sale or conveyance or to any adjustment to be made with respect thereto,
but, subject to the provisions of Sections 7.1 and 7.2, may accept as conclusive
evidence of the correctness of any such provisions, and shall be protected in
relying upon, the Officers' Certificate (which the Company shall be obligated to
file with the Trustee prior to the execution of any such supplemental indenture)
with respect thereto.
SECTION 12.6. NOTICE OF CERTAIN EVENTS.
If:
(a) the Company shall declare a dividend (or any other distribution)
payable to the holders of Common Stock otherwise than in cash; or
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(b) the Company shall authorize the granting to the holders of Common
Stock of rights to subscribe for or purchase any shares of stock of any class or
of any other rights; or
(c) the Company shall authorize any reclassification or change of the
Common Stock (other than a subdivision or combination of its outstanding shares
of Common Stock), or any consolidation or merger to which the Company is a party
and for which approval of any stockholders of the Company is required, or the
sale or conveyance of all or substantially all the property or business of the
Company; or
(d) there shall be authorized or ordered any voluntary or involuntary
dissolution, liquidation or winding-up of the company; or
(e) such other event shall occur as may be specified in any
Securities issued pursuant to this Indenture;
then, the Company shall cause to be filed at the office or agency maintained for
the purpose of conversion of the Securities as provided in Section 4.2, and
shall, with respect to Registered Securities convertible into Common Stock,
cause to be mailed to each Holder of such Registered Securities, at such
Holder's address as it shall appear on the Securities register maintained by the
Registrar and, with respect to Bearer Securities convertible into Common Stock,
cause to be published in an Authorized Newspaper on two separate days, at least
20 days before the date hereinafter specified (or the earlier of the dates
hereinafter specified, in the event that more than one date is specified), a
notice stating the date on which (1) a record is expected to be taken for the
purpose of such dividend, distribution or rights, or if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution or rights are to be determined, or (2) such
reclassification, change, consolidation, merger, sale, conveyance, dissolution,
liquidation or winding-up is expected to become effective and the date, if any
is to be fixed, as of which it is expected that holders of Common Stock of
record shall
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be entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such reclassification, change, consolidation, merger,
sale, conveyance, dissolution, liquidation or winding-up.
SECTION 12.7. TAXES ON CONVERSION.
The Company will pay any and all documentary, stamp or similar taxes
payable to the United States of America or any political subdivision or taxing
authority thereof or therein in respect of the issue or delivery of shares of
Common Stock on conversion of Securities pursuant thereto; PROVIDED, HOWEVER,
that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issue or delivery of shares of Common
Stock in a name other than that of the Holder of the Securities to be converted
(or payment of cash in lieu thereof to a Person other than such Holder) and no
such issue or delivery (or payment) shall be made unless and until the Person
requesting such issue or delivery (or payment) has paid to the Company the
amount of any such tax or has established, to the satisfaction of the Company,
that such tax has been paid. The Company extends no protection with respect to
any other taxes imposed in connection with conversion of Securities.
SECTION 12.8. COMPANY TO PROVIDE STOCK.
The Company shall reserve, free from preemptive rights, out of its
authorized but unissued shares, sufficient shares to provide for the conversion
of convertible Securities from time to time as such Securities are presented for
conversion, provided, however, that nothing contained herein shall be construed
to preclude the Company from satisfying its obligations in respect of the
conversion of Securities by delivery of repurchase shares of Common Stock which
are held in the treasury of the Company.
If any shares of Common Stock to be reserved 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 issued or delivered upon conversion, then the Company covenants that it
will in good faith and as
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expeditiously as possible endeavor to secure such registration or approval, as
the case may be; PROVIDED, HOWEVER, that nothing in this Section 12.8 shall be
deemed to affect in any way the obligations of the Company to convert Securities
into Common Stock as provided in this Article XII.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the Common Stock, the
Company will take all corporate action which may, in the Opinion of Counsel, be
necessary in order that the Company may validly and legally issue fully paid and
non-assessable shares of Common Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be fully paid and
non-assessable by the Company and free of preemptive rights.
SECTION 12.9. DISCLAIMER OF RESPONSIBILITY FOR CERTAIN MATTERS.
Neither the Trustee, the Conversion Agent nor any agent of either
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, or with respect to the Officers' Certificate referred
to in Section 12.4(h), or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same. Neither
the Trustee, the Conversion Agent nor any agent of either shall be accountable
with respect to the validity of value (or the kind or amount) or any shares of
Common Stock, or of any securities or property (including cash), which may at
any time be issued or delivered upon the conversion of any Security; and neither
the Trustee, the Conversion Agent nor any agent of either makes any
representation with respect thereto. Neither the Trustee, the Conversion Agent
nor any agent of either shall be responsible for any failure of the Company to
issue, register the transfer of or deliver any shares of Common Stock or stock
certificates or other securities or property
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(including cash) upon the surrender of any Security for the purpose of
conversion or, subject to Sections 7.1 and 7.2, to comply with any of the
covenants of the Company contained in this Article XII.
SECTION 12.10. RETURN OF FUNDS DEPOSITED FOR REDEMPTION OF CONVERTED SECURITIES.
Any funds which at any time shall have been deposited by the Company
or on its behalf with the Trustee or any Conversion Agent for the purpose of
paying the principal of and interest, if any, on any of the Securities and which
shall not be required for such purposes because of the conversion of such
Securities, as provided in this Article XII, shall after such conversion be
repaid to the Company by the Trustee or such Conversion Agent.
SECTION 12.11. RIGHTS ISSUED IN RESPECT OF COMMON STOCK ISSUED UPON CONVERSION.
Each share of Common Stock issued upon conversion of Securities
pursuant to this Article XII shall be entitled to receive the appropriate number
of preferred share purchase rights (the "Rights"), if any, and the certificates
representing the Common Stock issued upon such conversion shall bear such
legends, if any, in each case as provided by and subject to the terms of the
Rights Agreement, dated June 21, 1989, between the Company and The First
National Bank of Chicago, as Rights Agent (the "Rights Agreement"), as amended,
as in effect at the time of such conversion. Notwithstanding anything else to
the contrary in this Article XII, there shall not be any adjustment to the
conversion privilege or conversion rate as a result of (i) the distribution of
separate certificates representing the Rights, (ii) the occurrence of certain
events entitling holders of Rights to receive, upon exercise thereof, Common
Stock of the Company or capital stock of another corporation or (iii) the
exercise of such Rights in accordance with the Rights Agreement.
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ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by operation of subsection (c) of Section 318 of the TIA, the
imposed duties shall control.
SECTION 13.2. NOTICES.
Any notice or communication by the Company or the Trustee to the other
is duly given if in writing and delivered in person or by registered or
certified mail (postage prepaid, return receipt requested), telecopier or
overnight air courier guaranteeing next day delivery, addressed as follows:
If to the Company:
IMC Global Inc.
2100 Sanders Road
Northbrook, Illinois 60062
Attention: General Counsel
Fax No.: (847) 205-4894
If to the Trustee:
The Bank of New York
Floor 21 West
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Administration
Fax No.: (212) 815-5915
The Company or the Trustee by notice to the others may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication to the Company or the Trustee shall be
deemed to have been duly given or made at the time delivered by hand if
personally delivered; five
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calendar days after mailing if sent by registered or certified mail; when
receipt is acknowledged, if telecopied; and the next Business Day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next day
delivery (except that a notice of change of address shall not be deemed to have
been given until actually received by the addressee).
Any notice or communication to a Holder of a Registered Security shall
be mailed by first-class mail to such Securityholder's address shown on the
register kept by the Registrar. Failure to mail a notice or communication to a
Securityholder or any defect in-it shall not affect its sufficiency with respect
to other Securityholders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Trustee and each Agent at the same time.
Any notice to be given to a Holder of Bearer Securities shall be given
by publication in an Authorized Newspaper on two separate days within the time
prescribed.
SECTION 13.3. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 13.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(a) an Officers' Certificate, in form and substance reasonably
satisfactory to the Trustee, stating
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that, in the opinion of the signers, all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with;
and
(b) an Opinion of Counsel, in form and substance reasonably
satisfactory to the Trustee, stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
SECTION 13.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each party making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such party, such party
has made such examination or investigation as is necessary to enable such party
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether or not, in the opinion of each such
party, such condition or covenant has been complied with;
PROVIDED, HOWEVER, that with respect to matters of law, an Officers' Certificate
may be based upon an Opinion of Counsel, unless the signers know, or in the
exercise of reasonable care should know, that such Opinion of Counsel is
erroneous, and provided, further, that with respect to matters of fact, an
Opinion of Counsel may rely on an Officers' Certificate or certificates of
public officials, unless the signer knows, or in the exercise of reasonable care
should know, that any such document is erroneous.
-98-
<PAGE>
SECTION 13.6. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Registrar and the Paying Agent may make reasonable rules
for their functions.
SECTION 13.7. LEGAL HOLIDAYS.
If a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding Business Day, and no interest
on the amount payable on such payment date shall accrue for the intervening
period.
SECTION 13.8. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by accepting
a Security waives and releases all such liability. The waiver and release are
part of the consideration for the issue of Securities.
SECTION 13.9. GOVERNING LAW.
This Indenture and the Securities shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
principles of conflicts of laws.
SECTION 13.10. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
-99-
<PAGE>
SECTION 13.11. SUCCESSORS.
All agreements of the Company in this Indenture and the Securities
shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION 13.12. SEVERABILITY.
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 13.13. MULTIPLE ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.
SECTION 13.14. TABLE OF CONTENTS; HEADINGS.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not intended to be considered a part hereof and shall not
modify or restrict any of the terms or provisions hereof.
SECTION 13.15. SECURITIES IN FOREIGN CURRENCIES.
Wherever this Indenture provides for any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same currency, or any
distribution to Holders of Securities, in the absence of any provision to the
contrary in the form of Security of any particular series, any amount in respect
of any Security denominated in a currency other than United States dollars shall
be treated for any such action, determination or distribution as that amount of
United States dollars that could be obtained for such amount on such reasonable
basis of exchange and as of such date as the Company may specify in a written
notice to the Trustee, or in the absence of such notice, as the Trustee may
determine.
-100-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first above written.
IMC GLOBAL INC.
By: /s/ MARSCHALL I. SMITH
------------------------------
Name: Marschall I. Smith
Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/ THOMAS B. ZAKRZEWSKI
------------------------------
Name: Thomas B. Zakrzewski
Title: Assistant Vice President
-101-
<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF ________ )
On this _______ day of July, 1997 before me personally came
__________________________, to me personally known, who, being by me duly sworn,
did depose and say that he resides at ___________________________; that he is an
officer of The Bank of New York, which executed the above instrument.
[NOTARIAL SEAL]
_____________________________
Notary Public
-102-
<PAGE>
STATE OF ILLINOIS )
) SS.:
COUNTY OF ________ )
On this _______ day of July, 1997 before me personally came
__________________________, to me personally known, who, being by me duly sworn,
did depose and say that he resides at ___________________________; that he is an
officer of IMC Global Inc., which executed the above instrument.
[NOTARIAL SEAL]
_____________________________
Notary Public
-103-
<PAGE>
THIS DEBENTURE MAY BE TRANSFERRED IN WHOLE BUT NOT IN PART BY THE DEPOSITARY TO
A 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 SELECTED OR APPROVED BY THE COMPANY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
No. 1 $150,000,000.00
IMC GLOBAL INC.
6 7/8% DEBENTURES DUE JULY 15, 2007
CUSIP: 449669AC4
IMC Global Inc., a Delaware corporation (herein called the "Company,"
which term includes any successor corporation under the Indenture referred to
herein), for value received, hereby promises to pay to:
CEDE & CO.
or registered assigns, the principal sum of
*ONE HUNDRED AND FIFTY MILLION DOLLARS*
on July 15, 2007 and to pay interest on such principal sum at the rate of six
and seven-eighths percent (6 7/8%) per annum.
The Company will pay interest from the later of July 22, 1997 or the
most recent Interest Payment Date (as defined below) to which interest has been
paid or duly provided for, semi-annually on January 15 (beginning January 15,
1998) and on July 15 (each an "Interest Payment Date"), until the principal
hereof is otherwise paid or duly provided for. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture (as defined below), be paid to the Holder of this
Debenture (or one or more predecessor Debentures) of record at the close of
business on the regular record date (the "Regular Record Date") for such
Interest Payment Date, which, except in the case of interest payable at Maturity
(as defined in the Indenture), shall be the January 1 or July 1 (whether or not
a Business Day), as the case may be, next preceding such Interest Payment Date
and, in the case of interest payable at Maturity, shall be the date such that
interest payable at Maturity is payable to the same Person to whom principal on
this Debenture is payable. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date by
virtue of his having been such Holder, and may be paid to the Holder of this
Debenture (or one or more predecessor Debentures) of record at the close of
business on a special record date (the "Special Record Date") fixed by the
Company for the payment of such defaulted interest, notice whereof shall be
given to Holders not less than 15 days prior to such Special Record Date, all as
more fully provided in the Indenture (as defined below).
Payment of the principal of this Debenture and the interest thereon
will be made at the office or agency of the Company in the Borough of Manhattan,
City and State of New York, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.
<PAGE>
IMC GLOBAL INC.
6 7/8% Debentures due July 15, 2007
This Debenture is one of a duly authorized issue of debt securities of
the Company (herein called the "Securities"), issuable in one or more series,
unlimited in aggregate principal amount except as may be otherwise provided in
respect of the Securities of a particular series, issued and to be issued under
and pursuant to an Indenture dated as of July 17, 1997 (herein called the
"Indenture"), duly executed and delivered by the Company to The Bank of New
York, as Trustee (the "Trustee"), and is one of a series limited in aggregate
principal amount to $150,000,000 and designated as 6 7/8% Debentures due
July 15, 2007 (herein called the "Debentures"). Reference is hereby made to the
Indenture for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the Holders of
Securities (including Holders of the Debentures).
The Debentures are not redeemable prior to their Stated Maturity and
are not subject to any sinking fund.
The Debentures are subject to defeasance at the option of the Company
as provided in the Indenture.
As long as this Debenture is represented in global form (the "Global
Security") registered in the name of the Depositary or its nominee, except as
provided in the Indenture and subject to certain limitations therein set forth,
no Global Security shall be exchangeable or transferrable.
If an Event of Default (as defined in the Indenture) with respect to
the Debentures shall occur and be continuing, the principal plus any accrued
interest may be declared due and payable in the manner and with the effect and
subject to the conditions provided in the Indenture.
The Indenture permits the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Securities then
Outstanding of all series which are affected by such amendment or modification,
except that certain amendments which do not adversely affect the rights of any
Holder of the Securities may be made without the approval of Holders of the
Securities. No amendment or modification may, among other things, change the
Stated Maturity of any Security, reduce the principal amount thereof, reduce the
rate or change the time of payment of any interest thereon, or reduce the
aforesaid majority in aggregate principal amount of Securities of any series,
the consent of the Holders of which is required for any such amendment or
modification, without the consent of each Securityholder affected.
Notwithstanding any provision in the Indenture or any provision of
this Debenture, the Holder of this Debenture shall have the right, which is
absolute and unconditional, to receive payment of the principal of (and premium,
if any) and interest on this Debenture at the times, place and rate, and in the
coin or currency herein prescribed.
This Debenture shall be governed by, and construed in accordance with,
the laws of the state of New York, without regard to principles of conflicts of
laws.
All terms used in this Debenture which are defined in the Indenture
have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Debenture shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Debenture to be duly
executed.
Dated: July 22, 1997
IMC GLOBAL INC.
By:
----------------------------------------
Name:
Title:
Attest:
----------------------------------------
Name: Rose Marie Williams
Title: Corporate Secretary
This is one of the Securities of the
series designated herein issued under
the within-mentioned Indenture.
THE BANK OF NEW YORK, AS TRUSTEE
Dated: July 22, 1997
By:
----------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT FORM
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
To assign this Debenture, fill in the form below:
I or we assign and transfer this Debenture to
------------------------------
| |
| |
------------------------------
Insert assignee's soc. sec. or tax I.D. no.
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
and all rights thereunder and irrevocably appoint
------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Debenture on the books of the Company. The agent may
substitute another to act for him.
- --------------------------------------------------------------------------------
Dated:
----------------------- ----------------------------------------
----------------------------------------
NOTICE: The signature to this assignment must correspond with the name as
it appears on the first page of the within Debenture.
<PAGE>
THIS SECOND SUPPLEMENTAL INDENTURE, dated as of May 8, 1997, between
IMC GLOBAL INC., formerly known as IMC Fertilizer Group, Inc., a Delaware
corporation (hereinafter called the "Company"), having its principal executive
offices at 2100 Sanders Road, Northbrook, IL 60062, and THE BANK OF NEW YORK, a
New York banking corporation, as successor trustee to NationsBank of Georgia,
National Association, (the "TRUSTEE"), amends and supplements the Indenture
providing for the issuance of Senior Debt Securities in series, dated as of June
15, 1993, between the Company and the Trustee (the "ORIGINAL INDENTURE") and to
the extent inconsistent therewith, supersedes the Original Indenture.
RECITALS
WHEREAS, the Company and the Trustee entered into the Original
Indenture to provide for the issuance of 10-3/4% Senior Notes due 2001 and
10-3/4% Series B Senior Notes Due 2001 (collectively, the "10-3/4% NOTES");
and
WHEREAS, holders of more than a majority of the outstanding principal
amount of each of the 10-3/4% Notes have consented to the execution by the
Company and the Trustee of this Second Supplemental Indenture pursuant to which
certain covenants in the Original Indenture shall be deleted and certain other
provisions shall be amended; and
WHEREAS, Section 9.2 of the Original Indenture provides that the
Company and the Trustee may enter into one or more Supplemental Indentures to
amend the Original Indenture with the written consent of the holders of a
majority of the principal amount of the then outstanding securities of such
series.
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND OF THE MUTUAL
COVENANTS CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS:
SECTION 1. DEFINITIONS, REFERENCES. Unless otherwise specifically
defined herein, each term used herein which is defined in the Original Indenture
shall have the meaning assigned to such term in the Original Indenture. Except
as amended and supplemented hereby, all of the terms of the Original Indenture
shall remain in full force and effect and are hereby confirmed in all respects.
Each reference to "hereof," "hereunder," "herein," and "hereby" and each other
similar reference, and each reference to "this Agreement" and each other similar
reference, contained in the Original Indenture shall from and after the date
hereof refer to the Original Indenture as amended by this Second Supplemental
Indenture.
<PAGE>
SECTION 2. AMENDMENT TO ARTICLE FOUR OF THE ORIGINAL INDENTURE.
Sections 4.3, 4.4, 4.5, 4.6, 4.7, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.17,
and 4.18 of the Original Indenture are hereby deleted in their entirety.
SECTION 3. AMENDMENT TO ARTICLE FIVE OF THE ORIGINAL INDENTURE.
Section 5.1 of the Original Indenture is hereby deleted in its entirety.
SECTION 4. AMENDMENT TO ARTICLE SIX OF THE ORIGINAL INDENTURE.
Section 6.1 of the Original Indenture is hereby amended by deleting paragraphs
(c), (d), (e), and (f) in their entirety. Paragraphs (g) and (h) of Section 6.1
of the Original Indenture are hereby redesignated paragraphs (c) and (d).
SECTION 5. RATIFICATION OF PROVISIONS OF ORIGINAL INDENTURE. All
provisions of the Original Indenture not specifically herein supplemented or
modified are hereby ratified and reaffirmed by the Company and the Trustee.
SECTION 6. APPLICABILITY OF SECOND SUPPLEMENTAL INDENTURE. The
covenants and agreements set forth in this Second Supplemental Indenture shall,
unless otherwise determined by the Company and set forth in an amendment to the
Original Indenture, be applicable solely to the 10-3/4% Notes.
SECTION 7. COUNTERPARTS. This Second Supplemental Indenture may be
executed in counterparts by the parties hereto.
SECTION 8. SECTION HEADINGS. The Section headings in this Second
Supplement Indenture are inserted for convenience only and shall not be part of
this instrument.
SECTION 9. GOVERNING LAW. This Second Supplemental Indenture shall
be governed by and construed in accordance with the laws of the State of New
York.
SECTION 10. ENTIRE AGREEMENT. This Second Supplement Indenture and
the Original Indenture as amended hereby constitute the entire agreement and
understanding between the parties hereto and supersede any and all prior
agreements and understandings relating to the subject matter hereof.
* * * *
2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all of the day and year first
above written.
IMC GLOBAL INC.
By: /s/ Marschall I. Smith
-----------------------
Title: Senior Vice President
Attest: /s/ Rose Maries Williams
---------------------
Title: Secretary
THE BANK OF NEW YORK
By: /s/ Thomas B. Zakrewski
-----------------------
Title: Assistant Vice President
Attest: /s/ Timothy Shea
----------------
Title: Assistant Treasurer
3
