<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 6, 1996
REGISTRATION NO. 333-02958
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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APPLE SOUTH, INC.
(Exact name of registrant as specified in its charter)
GEORGIA 59-2778983
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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Hancock at Washington
Madison, Georgia 30650
(706) 342-4552
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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TOM E. DUPREE, JR.
Chairman of the Board
Apple South, Inc.
Hancock at Washington
Madison, Georgia 30650
(706) 342-4552
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
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COPIES TO:
LARRY D. LEDBETTER RICHARD D. TRUESDELL, JR.
Kilpatrick & Cody Davis Polk & Wardwell
1100 Peachtree Street, Suite 2800 450 Lexington Avenue
Atlanta, Georgia 30309 New York, New York 10017
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT AS
DETERMINED BY MARKET CONDITIONS.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. / / ________________________
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / ________________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH CLASS OF PROPOSED MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED OFFERING PRICE REGISTRATION FEE
<S> <C> <C>
Debt Securities........................ $200,000,000 $68,966
</TABLE>
THE COMPANY HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS
MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE COMPANY SHALL FILE A
FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
PROSPECTUS
[LOGO]
APPLE SOUTH, INC.
$200,000,000
DEBT SECURITIES
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Apple South, Inc. (the "Company") may from time to time offer up to $200,000,000
aggregate initial offering price of its debt securities (the "Debt Securities"),
on terms to be determined at the time of sale, and as more fully described under
"Description of Debt Securities." The accompanying Prospectus Supplement (the
"Prospectus Supplement") sets forth the specific designation, the aggregate
principal amount offered, authorized denominations, maturity, purchase price,
rate (which may be fixed or variable) and time of payment of interest, any terms
of redemption (including any sinking fund), and any other specific terms of the
Debt Securities in respect of which this Prospectus and the Prospectus
Supplement are being delivered (the "Offered Securities"), together with the
terms of the offering and sale of the Offered Securities.
The Company may sell Debt Securities to or through underwriters or dealers,
directly to one or more purchasers, through agents, or through a combination of
the foregoing. See "Plan of Distribution." Unless otherwise set forth in the
Prospectus Supplement, such underwriters will include either or both of J.P.
Morgan Securities Inc. and Raymond James & Associates, Inc. acting alone or as
representatives of a group of underwriters. Either or both of J.P. Morgan
Securities Inc. and Raymond James & Associates, Inc. may also act as agents. The
accompanying Prospectus Supplement sets forth the names of such underwriters or
agents, the principal amounts, if any, to be purchased by such underwriters, and
the compensation, if any, of such underwriters or agents.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 FOR A DISCUSSION OF CERTAIN FACTORS THAT
SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
J.P. MORGAN & CO. RAYMOND JAMES & ASSOCIATES, INC.
The date of this Prospectus is May 6, 1996.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements, and other information with the
Securities and Exchange Commission (the "Commission"). These materials can be
inspected and copied at the public reference facilities of the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and
at the Commission's regional offices located at: Seven World Trade Center, 13th
Floor, New York, New York 10048 and Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of these materials may be obtained
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. The Company's common stock, $.01 par
value, is quoted on the Nasdaq National Market. Reports, proxy statements, and
other information concerning the Company may be inspected at the National
Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C.
20006.
The Company has filed with the Commission a registration statement on Form S-3
(herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus does not contain all the information set
forth in the Registration Statement and the exhibits and schedules thereto.
Statements contained in this Prospectus as to the contents of any contract or
any other document referred to are not necessarily complete and in each instance
reference is made to the copy of such contract or other document filed as an
exhibit to the Registration Statement, each such statement being qualified in
all respects by such reference. For further information reference is hereby made
to the Registration Statement. A copy of the Registration Statement may be
inspected without charge and may be obtained at prescribed rates at the Public
Reference Section of the Commission, maintained by the Commission at its
principal office located at 450 Fifth Street, N.W., Washington, D.C. 20549, the
New York Regional Office located at Seven World Trade Center, 13th Floor, New
York, New York 10048, and the Chicago Regional Office at Citicorp Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference in this Prospectus the following
documents:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995;
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1996;
(c) The Company's Current Report on Form 8-K filed with the Commission on
April 3, 1995 and Amendment No. 1 thereto on Form 8-K/A filed with the
Commission on October 10, 1995; the Company's Current Report on Form 8-K filed
with the Commission on June 28, 1995; and the Company's Current Report on Form
8-K filed with the Commission on April 3, 1996.
(d) All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of the offering of the Debt
Securities hereby.
Any statement incorporated herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this Prospectus
is delivered, upon written or oral request of such person, a copy of any or all
of the documents incorporated herein by reference (other than exhibits to such
documents unless such exhibits are specifically incorporated by reference into
the document that this Prospectus incorporates by reference). Requests should be
directed to Erich J. Booth, Chief Financial Officer and Treasurer, Apple South,
Inc., Hancock at Washington, Madison, Georgia 30650, telephone number (706)
342-4552.
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THE COMPANY
Apple South, Inc. is a rapidly growing, multi-concept restaurant operating
company. Since its inception, the Company has grown and increased its
profitability through the efficient management of restaurant operations and
through a series of strategic restaurant openings and acquisitions. Over the
last five fiscal years, restaurant sales have increased at a compound annual
growth rate of 36%, and restaurant margins have risen from 11.1% in 1990 to
16.7% in 1995.
At March 31, 1996, the Company operated 274 restaurants, consisting of 198
casual dining restaurants operated under the name "Applebee's Neighborhood Grill
& Bar"; 48 "Don Pablo's" restaurants featuring traditional Mexican and Tex-Mex
dishes; 12 "Harrigan's" restaurants offering traditional classics such as
mesquite-smoked prime rib and hickory-grilled steaks and chicken; six
restaurants operated under the name "Tomato Rumba's Pastaria Grill" offering
pasta creations and grilled items; and ten franchised Hardee's fast-food
hamburger restaurants. For the year ended December 31, 1995, total restaurant
sales were $440.2 million.
As a franchisee of Applebee's International, Inc. (the "Franchisor"), the
Company holds the exclusive development rights for Applebee's restaurants in all
or parts of 22 states in the Southeast, Mid-Atlantic, and Midwest regions. The
Company opened its first Applebee's restaurant in South Carolina in 1986 and is
currently the nation's largest Applebee's operator. In November 1995, the
Company merged with DF&R Restaurants, Inc., the owner and operator of Don
Pablo's and Harrigan's restaurants. The Don Pablo's restaurants are concentrated
in Texas and the Midwest region, while the Harrigan's restaurants are located in
Texas, Oklahoma, and New Mexico. Tomato Rumba's is a proprietary casual dining
concept which the Company is continuing to refine.
APPLEBEE'S. Applebee's restaurants are intended to fill a market niche between
traditional full service and fast-food segments of the restaurant industry. The
restaurants are designed to appeal to a customer base consisting primarily of
the 21 to 54 year old group that grew up on traditional fast-food, but now
prefers a more sophisticated menu, the availability of alcoholic beverages, and
a comfortable ambiance in addition to the traditional qualities of fast-food
restaurants -- speed, value, and convenience. Each Applebee's restaurant is
designed and marketed as a friendly "neighborhood establishment" featuring a
varied selection of moderately priced, high-quality food and beverage items with
table service dining. Patronage by both family and adult groups is encouraged.
The Applebee's concept was initiated in 1980 with the opening of the first
Applebee's restaurant in Atlanta, Georgia, by a predecessor of the Franchisor.
The Franchisor is a publicly held company headquartered in Overland Park,
Kansas. As of March 31, 1996, the Applebee's restaurant system consisted of 699
restaurants in 45 states, Canada, the Caribbean, and Europe. Approximately 19%
of these restaurants are operated by the Franchisor, 28% by the Company, and the
remainder by other franchisees. During 1995, system-wide revenues from
Applebee's restaurants totaled approximately $1.25 billion.
DON PABLO'S. Don Pablo's restaurants feature traditional Mexican and Tex-Mex
dishes served in a distinctive, festive dining atmosphere reminiscent of a
Mexican village plaza. Each restaurant is staffed with a highly experienced
management team that is visible in the dining area and interacts with both
customers and the staff to ensure attentive customer service and consistent food
quality. The Company strives to differentiate Don Pablo's by offering a wide
variety of items prepared fresh on-site using high-quality ingredients at
relatively low prices. The diverse menu, generous portions, and attractive
price/value relationship appeal to a broad customer base, including families.
The first Don Pablo's was opened in Arlington, Texas in 1987. The Company
believes that the growing popularity of Mexican and Tex-Mex food and the
relatively few Mexican food restaurants in certain regions of the United States,
combined with the success of its Midwest and Mid-Atlantic restaurants, support
the Company's commitment to continue expanding the Don Pablo's chain in targeted
markets.
DEVELOPMENT PLANS. Including the 15 restaurants opened in the first quarter,
the Company expects to open a total of 68 restaurants in 1996, including at
least 46 Applebee's and 18 Don Pablo's restaurants. Expansion efforts during the
next few years will be focused on the development of additional Applebee's
restaurants in the Company's existing development territories and Don Pablo's
restaurants principally in the Midwest and Mid-Atlantic regions and Florida.
Under development agreements with the Franchisor, the Company is required to
open a specified number of Applebee's restaurants in each of its development
territories over specified intervals. Management believes that the Company's
existing development territories will support over 400 Applebee's restaurants
and will accommodate planned Applebee's restaurant development for approximately
five to seven years. In March 1996, the Company closed 15 restaurants in its
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Tomato Rumba's division and intends to focus its near term efforts on further
development of the Tomato Rumba's concept rather than building new Tomato
Rumba's restaurants. Management is currently exploring whether to undertake an
effort to refine the Harrigan's concept as a future growth vehicle. The Company
expects to sell its Hardee's restaurants before the end of the third quarter of
1996.
The Company attempts to balance its new restaurant development by (i)
selectively locating restaurants in areas where an appropriate level of market
penetration has been achieved, (ii) increasing the level of market penetration
in areas that are not yet "efficient," and (iii) expanding into new markets. As
a market area becomes more fully developed, each restaurant normally benefits
from increased customer recognition, greater advertising capabilities, and
economies of scale with respect to food costs, advertising and promotion, and
certain other expenses. Markets which have reached this minimum level of
penetration are characterized as "efficient" and typically are more profitable
than emerging markets.
The Company was incorporated under the laws of the State of Georgia in 1986. The
address of the Company's principal executive office is Hancock at Washington,
Madison, Georgia 30650. The Company's telephone number is (706) 342-4552. As
used in this Prospectus, the "Company" means Apple South, Inc. and its
subsidiaries and predecessors unless the context indicates otherwise.
RISK FACTORS
Prospective investors should consider carefully the following information in
conjunction with the other information contained in this Prospectus and the
Supplement hereto before purchasing Debt Securities.
This Prospectus and the Supplement hereto contain statements which constitute
forward looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. Those statements appear in a number of places in
this Prospectus and in the accompanying Prospectus Supplement and may include
statements regarding the intent, belief, or current expectations of the Company
or its officers with respect to (i) the use of proceeds of any offering of the
Debt Securities, (ii) the Company's financing plans, (iii) the policies of the
Company regarding investment, disposition, financing, or other matters, and (iv)
trends affecting the Company's financial condition or results of operations.
Prospective investors are cautioned that any such forward looking statements are
not guarantees of future performance and involve risks and uncertainties, and
that actual results may differ materially from those in the forward looking
statements as a result of various factors including but not limited to changes
in monetary and fiscal policies, laws and regulations, and social and economic
conditions, such as inflation or a recession, increased competition in the
restaurant industry, the current trend toward "dining out," and the amount,
type, and cost of financing available to the Company. The accompanying
information contained in this Prospectus, including without limitation the
information set forth below, and information set forth in the Prospectus
Supplement identify important factors that could cause such differences.
GROWTH STRATEGY. Based on its current development schedule, the Company expects
to complete the development of its existing Applebee's territories within five
to seven years. In connection with the approval by the Franchisor of a recent
acquisition by the Company of Applebee's restaurants and development territory
from another franchisee, the Company and the Franchisor agreed that it is
unlikely that the Franchisor will grant additional development territory to the
Company or approve an acquisition of territory from another Applebee's
franchisee. After the Company's Applebee's territories are fully developed, the
Company's growth will be dependent upon the success of the Don Pablo's and such
other growth concepts as the Company may acquire or develop. Management of the
Company believes that the Don Pablo's concept has demonstrated the capacity to
provide significant future growth; however, neither the Tomato Rumba's nor the
Harrigan's concepts as currently constituted have demonstrated the capability to
serve as future growth vehicles, and there can be no assurance that either of
these concepts can be developed so as to contribute significantly to the growth
of the Company. The Company is interested in acquiring additional restaurant
concepts; however, the Company is not engaged in any negotiations regarding any
such acquisition and there is no assurance that an appropriate concept will be
available for acquisition on acceptable terms.
FRANCHISE MATTERS. The Company operates its Applebee's restaurants as a
franchisee of Applebee's International, Inc. The Company has entered into
development agreements with the Franchisor which provide the Company with the
exclusive right to open Applebee's restaurants within designated territories. In
addition, each restaurant is operated pursuant to a franchise agreement with the
Franchisor. These agreements contain a number of restrictions and obligations on
the part of the Company, including the obligation to develop a significant
number of new restaurants over the next five years, and the
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failure of the Company to meet these requirements could result in the
termination of one or more franchise or development agreements. The long-term
success of the Company's Applebee's restaurants is, in large part, dependent
upon the overall success of the Applebee's restaurant system. Accordingly, the
success of the Company will be dependent in part upon the successful operation
of the Applebee's restaurants owned by the Franchisor and other franchisees, as
well as upon the financial condition, management, marketing, and innovative
abilities of the Franchisor. Any event that creates adverse publicity involving
Applebee's restaurants may have an adverse effect upon the Company regardless of
whether such event involves its restaurants.
NECESSITY OF ADDITIONAL FINANCING. If all the Debt Securities are sold, the net
proceeds from the sale, along with operating cash flow and existing credit
facilities, are expected to provide the capital required for the Company's
planned development of additional restaurants and the exercise of purchase
options under existing leases through 1997. However, the Company will require
financing in addition to its existing credit facilities to carry out its
expansion plans beyond 1997. Although management believes that such financing
will be available, the Company does not have any commitment for additional
financing.
FACTORS AFFECTING THE RESTAURANT INDUSTRY. The casual dining segment of the
restaurant industry is expected to remain intensely competitive with respect to
price, service, location, and the type and quality of food. Each of the
Company's restaurants competes directly or indirectly with locally-owned
restaurants as well as regional and national chains, and several of the
Company's significant competitors are larger or more diversified and have
substantially greater resources than the Company. It is also anticipated that
growth in the industry will result in continuing competition for available
restaurant sites as well as continued competition in attracting and retaining
qualified management level operating personnel. The restaurant business is often
affected by changes in consumer tastes, national, regional, or local economic
conditions, demographic trends, traffic patterns, and the type, number, and
location of competing restaurants. In addition, factors such as inflation,
increased food, labor, and benefits costs, and difficulty in attracting hourly
employees may adversely affect the restaurant industry in general and the
Company's restaurants in particular.
REGULATION. Each of the Company's restaurants is subject to extensive federal,
state, and local laws and regulations governing health, sanitation, minimum wage
and minimum hour requirements, safety, and the sale of alcoholic beverages. The
selection of new restaurant sites is affected by federal, state, and local laws
and regulations regarding environmental matters, zoning and land use, and the
sale of alcoholic beverages. The failure to receive or retain, or a delay in
obtaining, a liquor license in a particular location could adversely affect or
cause the Company to terminate its operations at that location. In the past,
none of these laws and regulations have had a significant negative effect on
operations, nor has the Company experienced any significant difficulties in
obtaining necessary licenses and approvals. More stringent and varied
requirements (particularly at the local level), however, may result in increases
in the cost and time required for opening new restaurants, and difficulties in
obtaining necessary licenses or permits could cause delays in or cancellations
of new restaurant openings.
ABSENCE OF ESTABLISHED PUBLIC MARKET. The Debt Securities will constitute a new
issue of securities for which there is no established public market. Unless
otherwise indicated in the applicable Prospectus Supplement, the Company does
not intend to list any Debt Securities on a national exchange or to seek
approval for quotation through any automated quotation system. Certain
broker-dealers may make a market in the Debt Securities but are under no
obligation to do so, and if commenced, such market making may be discontinued at
any time. Accordingly, there can be no assurance that an active trading market
will develop for the Debt Securities. If the Debt Securities are traded after
their initial issuance, future trading prices will depend on many factors,
including prevailing interest rates, the Company's operating results, and the
market for similar securities.
USE OF PROCEEDS
Except as otherwise described in the applicable Prospectus Supplement, the net
proceeds from the sale of Debt Securities will be used for the development of
new restaurants, the acquisition of additional restaurants and concepts if
appropriate opportunities arise, and for other general corporate purposes.
Pending such use, such funds will be used to pay down existing revolving bank
lines of credit or invested in short-term marketable securities.
5
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RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
QUARTER ENDED
YEAR ENDED DECEMBER 31 ------------------
---------------------------- APRIL 2 MARCH 31
1991 1992 1993 1994 1995 1995 1996
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<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges.......................... 2.12 2.99 4.53 5.04 3.83 4.37 --
</TABLE>
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The ratio of earnings to fixed charges is based on earnings from continuing
operations and has been computed on a total enterprise basis. Earnings represent
income from continuing operations before income taxes and fixed charges, net of
capitalized interest. Fixed charges consist of interest expense before reduction
for capitalized interest, debt amortization costs, and one-third (the percent
deemed representative of the interest factor) of total restaurant lease
payments. As a result of the asset revaluation charge of $19.8 million in the
first quarter of 1996, earnings were insufficient to cover fixed charges by $8.6
million. The ratio of earnings to fixed charges excluding the asset revaluation
charge would have been 4.31 for the first quarter of 1996.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an Indenture, to be dated as of May
1, 1996 (the "Indenture"), between the Company and SunTrust Bank, Atlanta, as
Trustee (the "Trustee"). The following summary of certain provisions of the
Indenture does not purport to be complete and is subject to, and is qualified in
its entirety by reference to, all the provisions of the Indenture, including the
definitions of certain terms therein and those terms made a part thereof by the
Trust Indenture Act of 1939, as amended. Whenever particular sections or defined
terms of the Indenture not otherwise defined herein are referred to, such
sections or defined terms are incorporated herein by reference. A copy of the
Indenture has been filed as an Exhibit to the Registration Statement of which
this Prospectus constitutes a part.
GENERAL
The Indenture does not limit the aggregate principal amount of Debt Securities
which may be issued thereunder and provides that the Debt Securities may be
issued from time to time in one or more series. The Debt Securities will be
direct, unsecured, and unsubordinated obligations of the Company. Except as may
be described in the Prospectus Supplement relating to any particular series of
Debt Securities offered thereby, the Indenture does not limit other indebtedness
or securities which may be incurred or issued by the Company or any of its
subsidiaries or contain financial or similar restrictions on the Company or any
of its subsidiaries. The Company's rights and the rights of its creditors,
including holders of Debt Securities, to participate in any distribution of
assets of any subsidiary of the Company upon the latter's liquidation or
reorganization or otherwise are effectively subordinated to the claims of the
subsidiary's creditors, except to the extent that the Company or any of its
creditors may itself be a creditor of that subsidiary. Although the Company's
obligations under its existing $165 million line of credit are unsecured, they
are guaranteed by certain of the Company's subsidiaries. Accordingly, the Debt
Securities will be effectively subordinated to the Company's obligations under
this line of credit with respect to any right to participate in any distribution
of assets of any such subsidiary.
The Prospectus Supplement which accompanies this Prospectus sets forth where
applicable the following terms of and information relating to the Offered
Securities offered thereby: (i) the designation of the Offered Securities; (ii)
the aggregate principal amount of the Offered Securities; (iii) the date or
dates on which principal of, and premium, if any, on the Offered Securities is
payable; (iv) the rate or rates at which the Offered Securities shall bear
interest, if any, or the method by which such rate shall be determined, and the
basis on which interest shall be calculated if other than a 360-day year
consisting of twelve 30-day months, the date or dates from which such interest
will accrue and on which such interest will be payable and the related record
dates; (v) if other than the offices of the Trustee, the place where the
principal of and any premium or interest on the Offered Securities will be
payable; (vi) any redemption, repayment or sinking fund provisions; (vii) if
other than denominations of $1,000 or multiples thereof, the denominations in
which the Offered Securities will be issuable; (viii) whether the Offered
Securities shall be issued in the form of Global Securities (as defined below)
or certificates; and (ix) any other specific terms of the Offered Securities,
including any additional Events of Default or covenants provided for with
respect to the Offered Securities.
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The Debt Securities will be issued either in certificated, fully registered
form, without coupons, or as Global Securities under a book-entry system, as
specified in the accompanying Prospectus Supplement and as defined below. See
"--Book-Entry System."
Unless otherwise specified in the accompanying Prospectus Supplement, principal
and premium, if any, will be payable, and the Debt Securities will be
transferable and exchangeable without any service charge, at the office of the
Trustee. However, the Company may require payment of the sum sufficient to cover
any tax or other governmental charge payable in connection with any such
transfer or exchange.
Unless otherwise specified in the accompanying Prospectus Supplement, interest
on any series of Debt Securities will be payable on the interest payment dates
set forth in the accompanying Prospectus Supplement to the persons in whose
names the Debt Securities are registered at the close of business on the related
record date and will be paid at the option of the Company, by wire transfer or
by checks mailed to such persons.
Unless otherwise described in the accompanying Prospectus Supplement, there are
no covenants or provisions contained in the Indenture which afford the holders
of the Debt Securities protection in the event of a highly leveraged transaction
involving the Company.
BOOK-ENTRY SYSTEM
If so specified in the accompanying Prospectus Supplement, Debt Securities of
any series may be issued under a book-entry system in the form of one or more
global securities (each a "Global Security"). Each Global Security will be
deposited with, or on behalf of, a depositary, which, unless otherwise specified
in the accompanying Prospectus Supplement, will be The Depository Trust Company,
New York, New York (the "Depositary"). The Global Securities will be registered
in the name of the Depositary or its nominee.
The Depositary has advised the Company that the Depositary is a limited purpose
trust company organized under the laws of the State of New York, a "banking
organization" within the meaning of the New York banking law, a member of the
Federal Reserve System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code, and a "clearing agency" registered pursuant to the
provisions of section 17A of the Exchange Act. The Depositary was created to
hold securities of its participants and to facilitate the clearance and
settlement of securities transactions among its participants through electronic
book-entry changes in accounts of the participants, thereby eliminating the need
for physical movement of securities certificates. The Depositary's participants
include securities brokers and dealers, banks, trust companies, clearing
corporations, and certain other organizations, some of which (and/or their
representatives) own the Depositary. Access to the Depositary's book-entry
system is also available to others, such as banks, brokers, dealers, and trust
companies that clear through or maintain a custodial relationship with a
participant, either directly or indirectly.
Upon the issuance of a Global Security in registered form, the Depositary will
credit, on its book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such Global Security to
the accounts of participants. The accounts to be credited will be designated by
the underwriters, dealers, or agents, if any, or by the Company, if such Debt
Securities are offered and sold directly by the Company. Ownership of beneficial
interests in the Global Security will be limited to participants or persons that
may hold interests through participants. Ownership of beneficial interests by
participants in the Global Security will be shown on, and the transfer of that
ownership interest will be effected only through, records maintained by such
participants. The laws of some jurisdictions may require that certain purchasers
of securities take physical delivery of such securities in definitive form. Such
laws may impair the ability to transfer beneficial interests in a Global
Security.
So long as the Depositary or its nominee is the owner of record of a Global
Security, the Depositary or such nominee, as the case may be, will be considered
the sole owner or holder of the Debt Securities represented by such Global
Security for all purposes under the Indenture. Except as set forth below, owners
of beneficial interests in a Global Security will not be entitled to have the
Debt Security represented by such Global Security registered in their names, and
will not receive or be entitled to receive physical delivery of such Debt
Securities in definitive form and will not be considered the owners or holders
thereof under the Indenture. Accordingly, each person owning a beneficial
interest in a Global Security must rely on the procedures of the Depositary and,
if such person is not a participant, on the procedures of the participant
through which such person owns its interest, to exercise any rights of a holder
of record under the Indenture. The Company understands that under existing
industry practices, if the Company requests any action of holders or if any
owner of a beneficial interest in a Global Security desires to give or take any
action which a holder is entitled to give or take
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under the Indenture, the Depositary would authorize the participants holding the
relevant beneficial interests to give or take such action, and such participants
would authorize beneficial owners owning through such participants to give or
take such action or would otherwise act upon the instruction of beneficial
owners holding through them.
Payments of principal of, premium, if any, and interest on Debt Securities
represented by a Global Security registered in the name of the Depositary or its
nominee will be made to such Depositary or such nominee, as the case may be, as
the registered owner of such Global Security. None of the Company, the Trustee
or any other agent of the Company or agent of the Trustee will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in such Global
Security or for maintaining, supervising, or reviewing any records relating to
such beneficial ownership interests.
The Company has been advised by the Depositary that the Depositary will credit
participants' accounts with payments of principal, premium, if any, or interest
on the payment date thereof in amounts proportionate to their respective
beneficial interests in the principal amount of the Global Security as shown on
the records of the Depositary. The Company expects that payments by participants
to owners of beneficial interests in the Global Security held through such
participants will be governed by standing instructions and customary practices,
as is now the case with securities held for the accounts of customers registered
in "street name," and will be the responsibility of such participants.
A Global Security may not be transferred except as a whole by the Depositary to
a nominee or successor of the Depositary or by a nominee of the Depositary to
another nominee of the Depositary. A Global Security representing all but not
part of the Debt Securities being offered hereby is exchangeable for Debt
Securities in definitive form of like tenor and terms if (i) the Depositary
notifies the Company that it is unwilling or unable to continue as depositary
for such Global Security or if at any time the Depositary is no longer eligible
to be or in good standing as a clearing agency registered under the Exchange
Act, and in either case, a successor depositary is not appointed by the Company
within 90 days of receipt by the Company of such notice or of the Company
becoming aware of such ineligibility, or (ii) the Company in its sole discretion
at any time determines not to have all of the Debt Securities represented by a
Global Security and notifies the Trustee thereof. A Global Security exchangeable
pursuant to the preceding sentence shall be exchangeable for Debt Securities
registered in such names and in such authorized denominations as the Depositary
for such Global Security shall direct.
EVENTS OF DEFAULT
An Event of Default, as defined in the Indenture and applicable to Debt
Securities, will occur with respect to the Debt Securities of any series if: (i)
the Company defaults in the payment of principal of (or premium if any, on) any
Debt Security of such series when the same becomes due and payable at maturity,
upon acceleration, redemption, mandatory repurchase, or otherwise; (ii) the
Company defaults in the payment of interest on any Debt Security of such series
when the same becomes due and payable, and such default continues for a period
of 30 days; (iii) the Company defaults in the performance of or breaches any
other covenant or agreement of the Company in the Indenture with respect to the
Debt Security of such series or under the Debt Securities of such series and
such default or breach continues for a period of 30 consecutive days after
written notice by the Trustee or by the holders (as defined in the Indenture) of
25% or more in aggregate principal amount of the Debt Securities of such series;
(iv) there occurs with respect to any issue or issues of indebtedness of the
Company or any of its subsidiaries having an outstanding principal amount of $25
million or more in the aggregate for all such issues of all such persons,
whether such indebtedness now exists or shall hereafter be created, (A) an event
of default that has caused the holder thereof to declare such Indebtedness to be
due and payable prior to its stated maturity and/or (B) the failure to make a
principal payment at the final (but not any interim) fixed maturity; (v) any
final judgment or order (not covered by insurance) for the payment of money in
excess of $10 million in the aggregate for all such final judgments or orders
(treating any deductibles, self-insurance, or retention as not so covered) shall
be rendered against the Company or any of its subsidiaries and shall not be paid
or discharged, and there shall be any period of 60 consecutive days following
entry of the final judgment or order that causes the aggregate amount for all
such final judgments or orders outstanding and not paid or discharged against
all such persons to exceed $10 million during which a stay of enforcement of
such final judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; (vi) a court having jurisdiction in the premises enters a
decree or order for (A) relief in respect of the Company or any of its
subsidiaries in an involuntary case under any applicable bankruptcy, insolvency,
or other similar law now or hereafter in effect, (B) appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator, or similar official of
the Company or any of its subsidiaries or for all or substantially all of the
property and assets of the Company or any of
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its subsidiaries or (C) the winding up or liquidation of the affairs of the
Company or any of its subsidiaries and, in each case, such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; (vii) the
Company or any of its subsidiaries (A) commences a voluntary case under any
applicable bankruptcy, insolvency, or other similar law now or hereafter in
effect, or consents to the entry of an order for relief in an involuntary case
under any such law, (B) consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator, or similar
official of the Company or any of its subsidiaries or for all or substantially
all of the property and assets of the Company or any of its subsidiaries or (C)
effects any general assignment for the benefit of creditors; and (viii) any
other Events of Default set forth in the applicable Prospectus Supplement occur.
If an Event of Default (other than an Event of Default specified in clause (vi)
or (vii) above that occurs with respect to the Company) occurs with respect to
the Debt Securities of any series then outstanding and is continuing under the
Indenture, then, and in each and every such case, except for any series of Debt
Securities the principal of which shall have already become due and payable,
either the Trustee or the holders of not less than 25% in aggregate principal
amount of the Debt Securities of any such series then outstanding under the
Indenture (each such series voting as a separate class) by written notice to the
Company (and to the Trustee if such notice is given by the holders (the
"Acceleration Notice")), may, and the Trustee at the request of such holders
shall, declare the principal of, premium, if any, and accrued interest on the
Debt Securities of such series to be immediately due and payable. Upon a
declaration of acceleration, such principal of, premium, if any, and accrued
interest shall be immediately due and payable. In the event of a declaration of
acceleration because an Event of Default set forth in clause (iv) above has
occurred and is continuing, such declaration of acceleration shall be
automatically rescinded and annulled if the event of default or payment default
triggering such Event of Default pursuant to clause (iv) shall be remedied or
cured by the Company and/or the relevant subsidiaries or waived by the holders
of the relevant indebtedness within 60 days after the declaration of
acceleration with respect thereto. If an Event of Default specified in clause
(vi) or (vii) above occurs with respect to the Company, the principal of,
premium, if any, and accrued interest on the Notes then outstanding shall ipso
facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any holder. The holders of at least a majority
in principal amount of the outstanding Debt Securities of any series may, by
written notice to the Company and to the Trustee, waive all past defaults with
respect to Debt Securities of such series and rescind and annul a declaration of
acceleration with respect to Debt Securities of such series and its consequences
if (i) all existing Events of Default applicable to Debt Securities of such
series, other than the nonpayment of the principal of, premium, if any, and
interest on the Notes that have become due solely by such declaration of
acceleration, have been cured or waived and (ii) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction. For
information as to the waiver of defaults, see "-- Modification and Waiver."
The holders of at least a majority in aggregate principal amount of the
outstanding Debt Securities of any series may direct the time, method, and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or the Indenture, that
may involve the Trustee in personal liability, or that the Trustee determines in
good faith may be unduly prejudicial to the rights of holders of such series of
Debt Securities not joining in the giving of such direction and may take any
other action it deems proper that is not inconsistent with any such direction
received from holders of Debt Securities of such series. A holder may not pursue
any remedy with respect to the Indenture or the Debt Securities of any series
unless: (i) the holder gives the Trustee written notice of a continuing Event of
Default; (ii) the holders of at least 25% in aggregate principal amount of
outstanding Debt Securities of such series make a written request to the Trustee
to pursue the remedy; (iii) such holder or holders offer the Trustee indemnity
satisfactory to the Trustee against any costs, liability or expense; (iv) the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and (v) during such 60-day period, the
holders of a majority in aggregate principal amount of the outstanding Debt
Securities of such series do not give the Trustee a direction that is
inconsistent with the request. However, such limitations do not apply to the
right of any holder of a Debt Security to receive payment of the principal of,
premium, if any, or interest on, such Debt Security or to bring suit for the
enforcement of any such payment, on or after the due date expressed in the Debt
Securities, which right shall not be impaired or affected without the consent of
the holder.
The Indenture will require certain officers of the Company to certify, on or
before a date not more than 90 days after the end of each fiscal year, that they
have conducted or supervised a review of the activities of the Company and its
subsidiaries and the Company's and its subsidiaries' performance under the
Indenture and that to the best of such
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<PAGE>
officers' knowledge, based upon such review, the Company has fulfilled all
obligations thereunder, or, if there has been a default in the fulfillment of
any such obligation, specifying each such default and the nature and status
thereof. The Company will also be obligated to notify the Trustee of any default
or defaults in the performance of any covenants or agreements under the
Indenture.
CONSOLIDATION, MERGER, AND SALE OF ASSETS
The Indenture provides that the Company shall not consolidate with, merge with
or into, or sell, convey, transfer, lease, or otherwise dispose of all or
substantially all of its property and assets (as an entirety or substantially as
an entirety in one transaction or a series of related transactions) to any
person or permit any person to merge with or into the Company (subject to such
exceptions as may be established in connection with the issuance of the Debt
Securities of all series then outstanding) unless: (i) the Company shall be the
continuing person, or the person (if other than the Company) formed by such
consolidation or into which the Company is merged or that acquired or leased
such property and assets of the Company shall be a corporation organized and
validly existing under the laws of the United States of America or any
jurisdiction thereof and shall expressly assume, by a supplemental indenture,
executed and delivered to the Trustee, all of the obligations of the Company on
all of the Debt Securities and under the Indenture; (ii) immediately after
giving effect to such transaction, no Default or Event of Default shall have
occurred and be continuing; (iii) the Company delivers to the Trustee an
officers' certificate and opinion of counsel, in each case stating that such
consolidation, merger, or transfer and such supplemental indenture complies with
this provision and that all conditions precedent provided for herein relating to
such transaction have been complied with; and (iv) such other conditions as may
be established in connection with the issuance of the Debt Securities of any
series then outstanding.
DEFEASANCE
DEFEASANCE AND DISCHARGE. The Indenture will provide that the Company will be
deemed to have paid and will be discharged from any and all obligations in
respect of the Debt Securities of any series and the Indenture with respect to
Debt Securities of such series on the 123rd day after the deposit referred to
below, and the provisions of the Indenture will no longer be in effect with
respect to the Debt Securities of such series (except for, among other matters,
certain obligations to register the transfer or exchange of the Debt Securities
of such series, to replace stolen, lost, or mutilated Debt Securities of such
series, to maintain paying agencies, and to hold monies for payment in trust)
if, among other things, (A) the Company has deposited with the Trustee, in
trust, money and/or U.S. Government Obligations that through the payment of
interest and principal in respect thereof, in accordance with their terms will
provide money in an amount sufficient to pay the principal of, premium, if any,
and accrued interest on the Debt Securities of such series on the stated
maturity of such payments in accordance with the terms of the Indenture and the
Debt Securities of such series, (B) the Company has delivered to the Trustee (i)
either (x) an Opinion of Counsel to the effect that holders of Debt 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 option under this
"Defeasance" provision 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 deposit, defeasance, and discharge had not occurred, which Opinion of
Counsel must be based upon (and accompanied by a copy of) a ruling of the
Internal Revenue Service to the same effect unless there has been a change in
applicable federal income tax law after the date of the Indenture such that a
ruling is no longer required or (y) a ruling directed to the Trustee received
from the Internal Revenue Service to the same effect as the aforementioned
Opinion of Counsel and (ii) an Opinion of Counsel to the effect that the
creation of the defeasance trust does not violate the Investment Company Act of
1940 and after the passage of 123 days following the deposit, the trust fund
will not be subject to the effect of Section 547 of the United States Bankruptcy
Code or Section 15 of the New York Debtor and Creditor Law, (C) immediately
after giving effect to such deposit on a pro forma basis, no Event of Default,
or event that after the giving of notice or lapse of time or both would become
an Event of Default, shall have occurred and be continuing on the date of such
deposit or during the period ending on the 123rd day after the date of such
deposit, and such deposit shall not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which the
Company is a party or by which the Company is bound, and (D) if at such time the
Debt Securities of such series are listed on a national securities exchange, the
Company has delivered to the Trustee an Opinion of Counsel to the effect that
the Debt Securities of such series will not be delisted as a result of such
deposit, defeasance, and discharge.
DEFEASANCE OF CERTAIN COVENANTS AND CERTAIN EVENTS OF DEFAULT. The Indenture
will further provide that the provisions of the Indenture applicable to Debt
Securities of any series will no longer be in effect with respect to any
covenants described in the applicable Prospectus Supplement as being subject to
such defeasance and clause (iii) under "-- Events
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<PAGE>
of Default" with respect to such covenants and clauses (iv), (v), and, if
specified in the applicable Prospectus Supplement, (viii) under "Events of
Default" shall be deemed not to be Events of Default with respect to Debt
Securities of such series, upon, among other things, the deposit with the
Trustee, in trust, of money and/or U.S. Government Obligations that through the
payment of interest and principal in respect thereof in accordance with their
terms will provide money in an amount sufficient to pay the principal of,
premium, if any, and accrued interest on the Debt Securities of such series on
the Stated Maturity of such payments in accordance with the terms of the
Indenture and the Debt Securities of such series, the satisfaction of the
provisions described in clauses (B)(ii), (C), and (D) of the preceding paragraph
and the delivery by the Company to the Trustee of an Opinion of Counsel to the
effect that, among other things, the holders of Debt Securities of such series
will not recognize income, gain, or loss for federal income tax purposes as a
result of such deposit and defeasance of certain covenants and Events of Default
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 deposit and
defeasance had not occurred.
DEFEASANCE AND CERTAIN OTHER EVENTS OF DEFAULT. In the event the Company
exercises its option to omit compliance with certain covenants and provisions of
the Indenture with respect to the Debt Securities of any series as described in
the immediately preceding paragraph and the Debt Securities of such series are
declared due and payable because of the occurrence of an Event of Default that
remains applicable, the amount of money and/or U.S. Government Obligations on
deposit with the Trustee will be sufficient to pay amounts due on the Debt
Securities of such series at the time of their Stated Maturity but may not be
sufficient to pay amounts due on the Debt Securities of such series at the time
of the acceleration resulting from such Event of Default. However, the Company
will remain liable for such payments.
MODIFICATION AND WAIVER
The Indenture provides that the Company and the Trustee may amend or supplement
the Indenture or the Debt Securities of any series without notice to or the
consent of any holder: (i) to cure any ambiguity, defect, or inconsistency in
the Indenture; provided that such amendments or supplements shall not adversely
affect the interests of the holders in any material respect; (ii) to comply with
Article 5 of the Indenture; (iii) to comply with any requirements of the
Commission in connection with the qualification of the Indenture under the Trust
Indenture Act of 1939, as amended; (iv) to evidence and provide for the
acceptance of appointment hereunder by a successor Trustee; (v) to establish the
form or forms or terms of Debt Securities of any series or of the coupons
appertaining to such Debt Securities as permitted by the Indenture; (vi) to
provide for uncertificated Debt Securities and to make all appropriate changes
for such purpose; and (vii) to make any change that does not materially and
adversely affect the rights of any holder.
The Indenture also provides that modifications and amendments of the Indenture
may be made by the Company and the Trustee with the consent of the holders of
not less than a majority in aggregate principal amount of the outstanding Debt
Securities of each series affected thereby (each series voting as a separate
class); provided, however, that no such modification or amendment may, without
the consent of each holder affected thereby, (i) change the stated maturity of
the principal of, or any installment of interest on, any Debt Security, (ii)
reduce the principal amount of, or premium, if any, or interest on, any Debt
Security, (iii) change the place or currency of payment of principal of, or
premium, if any, or interest on, any Debt Security, (iv) impair the right to
institute suit for the enforcement of any payment on or after the stated
maturity (or, in the case of a redemption, on or after the redemption date) of
any Debt Security, (v) reduce the above-stated percentage of outstanding Notes
the consent of whose holders is necessary to modify or amend the Indenture, (vi)
waive a default in the payment of principal of, premium, if any, or interest on
the Notes, or (vii) reduce the percentage or aggregate principal amount of
outstanding Debt Security of any series the consent of whose holders is
necessary for waiver of compliance with certain provisions of the Indenture or
for waiver of certain defaults. A supplemental indenture which changes or
eliminates any covenant or other provision of the Indenture which has expressly
been included solely for the benefit of one or more particular series of Debt
Securities, or which modifies the rights of holders of Debt Securities of such
series with respect to such covenant or provision, shall be deemed not to affect
the rights under the Indenture of the holders of Debt Securities of any other
series or of the coupons appertaining to such Debt Securities. It shall not be
necessary for the consent of the holders under this section of the Indenture to
approve the particular form of any proposed amendment, supplement, or waiver,
but it shall be sufficient if such consent approves the substance thereof. After
an amendment, supplement, or waiver under this section of the Indenture becomes
effective, the Company shall give to the holders affected thereby a notice
briefly describing the amendment, supplement, or waiver. The
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Company will mail supplemental indentures to holders upon request. Any failure
of the Company to mail such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such supplemental indenture or
waiver.
Neither the Company nor any of its subsidiaries will, directly or indirectly,
pay or cause to be paid any consideration, whether by way of interest, fee, or
otherwise, to any holder of any Debt Security for or as an inducement to any
consent, waiver, or amendment of any of the terms or provisions of the Indenture
or the Debt Securities unless such consideration is offered to be paid or agreed
to be paid to all holders of the Debt Securities that consent, waive, or agree
to amend in the time frame set forth in the solicitation documents relating to
such consent, waiver, or agreement.
NO PERSONAL LIABILITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, DIRECTORS, OR
EMPLOYEES
The Indenture provides that no recourse for the payment of the principal of,
premium, if any, or interest on any of the Debt Securities or for any claim
based thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant, or agreement of the Company in the Indenture, or in any of
the Debt Securities or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer, director,
employee, or controlling person of the Company or of any successor Person
thereof. Each holder, by accepting the Debt Securities, waives and releases all
such liability.
CONCERNING THE TRUSTEE
The Indenture provides that, except during the continuance of a Default, the
Trustee will not be liable, except for the performance of such duties as are
specifically set forth in such Indenture. If an Event of Default has occurred
and is continuing, the Trustee will use the same degree of care and skill in its
exercise as a prudent person would exercise under the circumstances in the
conduct of such person's own affairs.
The Indenture and provisions of the Trust Indenture Act of 1939, as amended,
incorporated by reference therein contain limitations on the rights of the
Trustee, should it become a creditor of the Company, to obtain payment of claims
in certain cases or to realize on certain property received by it in respect of
any such claims, as security or otherwise. The Trustee is permitted to engage in
other transactions; provided, however, that if it acquires any conflicting
interest, it must eliminate such conflict or resign.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through underwriters or dealers,
directly to one or more purchasers, through agents or through a combination of
the foregoing. Unless otherwise set forth in the Prospectus Supplement, such
underwriters will include either or both of J.P. Morgan Securities Inc. and
Raymond James & Associates, Inc., acting alone or as representatives of a group
of underwriters. Either or both of J.P. Morgan Securities Inc. and Raymond James
& Associates, Inc. may also act as agents.
The distribution of the Debt Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, or at negotiated prices.
In connection with the sale of Debt Securities, underwriters may receive
compensation from the Company or from purchasers of Debt Securities for whom
they may act as agents in the form of discounts, concessions, or commissions.
Underwriters may sell Debt Securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions, or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agents. Underwriters, dealers, and agents that participate in the
distribution of Debt Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Company and any profit on the
resale of Debt Securities by them may be deemed to be underwriting discounts and
commissions, under the Securities Act. Any such underwriter or agent will be
identified, and any such compensation received from the Company will be
described in the Prospectus Supplement.
Under agreements which may be entered into by the Company, underwriters and
agents who participate in the distribution of Debt Securities may be entitled to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act.
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If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase Offered Securities from the Company pursuant
to contracts providing for payment and delivery on a future date. Institutions
with which such contracts may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions, and others, but in all cases such institutions must be
approved by the Company. The obligations of any purchaser under any such
contract will be subject to only those conditions set forth in the Prospectus
Supplement. The underwriters and such other agents will not have any
responsibility in respect of the validity or performance of such contracts.
Unless otherwise indicated in the Prospectus Supplement, the Company does not
intend to list any of the Debt Securities on a national securities exchange or
seek approval for quotation through any automated quotation system. If the Debt
Securities are not listed on a national securities exchange or approved for
quotation through an automated quotation system, certain broker-dealers may make
a market in the Debt Securities, but will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given that any broker-dealer will make a market in the Debt Securities or as to
the liquidity of the trading market for the Debt Securities, whether or not the
Debt Securities are listed on a national securities exchange or approved for
quotation through an automated quotation system. The Prospectus Supplement with
respect to any Offered Securities will state, if known, whether or not any
broker-dealer intends to make a market in such Offered Securities. If no such
determination has been made, the Prospectus Supplement will so state.
LEGAL MATTERS
The legality of the Debt Securities will be passed upon for the Company by
Kilpatrick & Cody, Atlanta, Georgia, as counsel for the Company, and unless
otherwise indicated in the applicable Prospectus Supplement, will be passed upon
for any underwriters or agents by Davis Polk & Wardwell. Attorneys at Kilpatrick
& Cody who participated in the preparation of this Prospectus own a total of
2,830 shares of common stock of the Company.
EXPERTS
The consolidated financial statements of Apple South, Inc., as of December 31,
1994 and 1995, and for each of the years in the three-year period ended December
31, 1995, and the financial statements of TUG, Inc., as of October 31, 1994, and
for the ten months ended October 31, 1994, incorporated in this Prospectus and
in the Registration Statement by reference have been incorporated herein and in
the Registration Statement in reliance upon the reports of KPMG Peat Marwick
LLP, independent certified public accountants, incorporated by reference herein
and in the Registration Statement, and upon the authority of that firm as
experts in accounting and auditing.
The financial statements of The Marcus Corporation's Applebee's Operations, as
of May 29, 1994 and May 28, 1995, and for each of the years then ended,
incorporated by reference herein and in the Registration Statement, have been
audited by Ernst & Young LLP, independent auditors, as set forth in their report
thereon incorporated by reference herein and in the Registration Statement, and
are incorporated by reference elsewhere herein in reliance upon such report
given upon the authority of such firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Estimated expenses (other than underwriting commissions) of the sale of the Debt
Securities are as follows:
<TABLE>
<S> <C>
Registration Fee......................................................... $ 68,966
Blue Sky Fees and Expenses............................................... 20,000
Printing and Engraving Expenses.......................................... 60,000
Rating Agencies Fees..................................................... 125,000
Fees and Expenses of Trustee............................................. 7,500
Legal Fees and Expenses.................................................. 85,000
Accounting Fees and Expenses............................................. 20,000
Miscellaneous Expenses................................................... 13,534
---------
Total................................................................ $ 400,000
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 14-2-851, et. seq., of the Georgia Business Corporation Code (the
"Code") authorizes the Company to indemnify its directors, officers, employees,
and agents in certain circumstances. Section 14-2-856 expressly allows the
Company to provide, with shareholder approval, indemnification rights that are
broader than otherwise provided under the Code. Article Eight of the Company's
Bylaws provides for broader indemnification rights than expressly provided under
the Code. The following is a summary of the material provisions of Article
Eight.
Article Eight requires the Company to indemnify persons who are parties to any
civil, criminal, administrative, or investigative action, suit, or proceeding by
reason of the fact that such person was or is a director of the Company. Except
as noted in the next paragraph, directors are entitled to be indemnified against
expenses (including but not limited to attorneys' fees and court costs), and
against any judgments, fines, and amounts paid in settlement actually and
reasonably incurred by them. Directors are also entitled to have the Company
advance any such expenses prior to final disposition of the proceeding, upon an
undertaking to repay the Company if it is ultimately determined that they are
not entitled to indemnification.
Under Article Eight, indemnification will be disallowed under the following four
exceptions to limitation of directors' liability under Section 14-2-202 of the
Code: (i) any appropriation, in violation of the director's duties, of any
business opportunity of the Company, (ii) acts or omissions which involve
intentional misconduct or a knowing violation of law, (iii) liability under
Section 14-2-832 of the Code (dealing with unlawful distributions), and (iv) any
transaction from which the director received an improper personal benefit.
The Board of Directors also has the authority to extend to officers, employees,
and agents the same indemnification rights held by directors, subject to all of
the accompanying conditions and obligations. The Board of Directors has extended
indemnification rights to all of its executive officers.
The Company, upon authorization of the Board of Directors, has the power to
enter into an agreement or agreements providing to any person who was or is a
director, officer, employee, or agent of the Company indemnification rights
substantially the same as those provided to directors under Article Eight. The
Company has entered into indemnity agreements with its directors and executive
officers.
The Company has the power to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee, or agent of the Company
against any liability asserted against him or incurred by him in any such
capacity, whether or not the Company now has the power to indemnify him against
such liability under Article Eight.
II-1
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
The following documents are filed as exhibits to this Registration
Statement:
1.1 Form of Underwriting Agreement.
4.1 Form of Indenture between the Registrant and SunTrust Bank,
Atlanta, as Trustee.
4.2 Proposed form of Debt Securities.
5.1 Opinion of Kilpatrick & Cody with respect to the legality of
the securities being registered.
12.1 Calculation of Ratio of Earnings to Fixed Charges
(including calculation of first quarter of 1995 and 1996).
23.1 Consent of Kilpatrick & Cody
(contained in Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.*
23.3 Consent of Ernst & Young LLP.*
24.1 Power of Attorney*
(set forth on signature page to the Registration
Statement).
25.1 Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of SunTrust Bank, Atlanta.
- ------------------------
* Previously filed.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total dollar value of
securities offered would not exceed that which is registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by these
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA FIDE offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each
II-2
<PAGE>
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial BONA FIDE offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers, and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer, or controlling person of the registrant in the
successful defense of any action, suit, or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Madison, State of Georgia, on May 3, 1996.
APPLE SOUTH, INC.
By: /s/ TOM E. DUPREE, JR.
-----------------------------------
Tom E. DuPree, Jr.
CHIEF EXECUTIVE OFFICER AND
CHAIRMAN OF THE BOARD OF DIRECTORS
Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 1
to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ ------------------------------------------- ---------------------
<C> <S> <C>
/s/ TOM E. DUPREE, JR. Chairman of the Board of Directors and
------------------------------------------- Chief Executive Officer (principal May 3, 1996
Tom E. DuPree, Jr. executive officer)
/s/ MICHAEL W. EVANS
------------------------------------------- Director, President and Chief Operating May 3, 1996
Michael W. Evans Officer
/s/ JOHN G. MCLEOD, JR.
------------------------------------------- Director, Senior Vice President -- Human May 3, 1996
John G. McLeod, Jr. Resources and Secretary
/s/ DAVID P. FRAZIER
------------------------------------------- Director May 3, 1996
David P. Frazier
/s/ MARC D. REDUS
------------------------------------------- Director May 3, 1996
Marc D. Redus
------------------------------------------- Director May , 1996
Thomas R. Williams
------------------------------------------- Director May , 1996
James W. Rowe
/s/ ERICH J. BOOTH Chief Financial Officer and Treasurer
------------------------------------------- (Principal Financial Officer and Principal May 3, 1996
Erich J. Booth Accounting Officer)
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT MANUAL
NUMBER PAGE NUMBER
- ----------- ---------------
<C> <S> <C>
1.1 Form of Underwriting Agreement....................................................................
4.1 Form of Indenture between the Registrant and SunTrust Bank, Atlanta, as Trustee...................
4.2 Proposed form of Debt Securities..................................................................
5.1 Opinion of Kilpatrick & Cody with respect to the legality of the securities being registered......
12.1 Calculation of Ratio of Earnings to Fixed Charges (including calculation of first quarter of 1995
and 1996)........................................................................................
23.1 Consent of Kilpatrick & Cody (appears in opinion filed as Exhibit 5.1)............................
23.2 Consent of KPMG Peat Marwick LLP.................................................................. *
23.3 Consent of Ernst & Young LLP...................................................................... *
24.1 Power of Attorney (set forth on signature page to the Registration Statement)..................... *
25.1 Form T-1 Statement of Eligibility and Qualification under the Trustee Indenture Act of 1939 of
SunTrust Bank, Atlanta...........................................................................
</TABLE>
- ------------------------
* Previously filed.
II-5
<PAGE>
$150,000,000
APPLE SOUTH, INC.
% Notes Due 2006
---
Underwriting Agreement
May , 1996
---
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260-0060
Raymond James & Associates, Inc.
880 Carillon Parkway
St. Petersburg, Florida 33716
Ladies and Gentlemen:
Apple South, Inc., a Georgia corporation (the "Company"), proposes to
issue and sell to you (the "Underwriters") $ principal amount of its
____% Notes Due (the "Securities"). The Securities will be issued
pursuant to the provisions of an Indenture to be dated as of _____, 1996 between
the Company and SunTrust Bank, Atlanta, as Trustee (the "Trustee").
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a prospectus, relating
<PAGE>
to $150,000,000 principal amount of its debt securities to be issued from time
to time and has filed with, or transmitted for filing to, or shall promptly
hereafter file with or transmit for filing to, the Commission a prospectus
supplement (the "Prospectus Supplement") specifically relating to the Securities
pursuant to Rule 424 under the Securities Act. The term "Registration
Statement" means the registration statement, including the exhibits thereto, as
amended to the date of this Agreement. The term "Basic Prospectus" means the
prospectus included in the Registration Statement. The term "Prospectus" means
the Basic Prospectus together with the Prospectus Supplement. The term
"Preliminary Prospectus" means a preliminary prospectus supplement specifically
relating to the Securities, together with the Basic Prospectus. As used herein,
the terms "Registration Statement," "Basic Prospectus," "Prospectus" and
"preliminary prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement," "amendment" and
"amend" as used herein shall include all documents deemed to be incorporated by
reference in the Registration Statement and Prospectus that are filed subsequent
to the date of the Basic Prospectus by the Company with the Commission pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act").
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the
Underwriters as hereinafter provided, and each Underwriter, upon the basis of
the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Company the respective principal amount of Securities set forth
opposite such Underwriters' name in Schedule I hereto at a price equal to _____%
of their principal amount plus accrued interest, if any, from ____________, 1996
to the date of payment and delivery.
2. The Company understands that the Underwriters intend (i) to make
a public offering of the Securities as
2
<PAGE>
soon after the parties hereto have executed and delivered this Agreement, as in
your judgment is advisable and (ii) initially to offer the Securities upon the
terms set forth in the Prospectus.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Underwriters (no later than noon the Business Day prior to the Closing Date (as
defined herein)) at the office of J.P. Morgan Securities Inc., 60 Wall Street,
New York, New York 10260-0060 at 10:00 a.m., New York City time on ___________,
19__, or at such other time on the same or such other date, as the Underwriters
and the Company may agree upon in writing. The time and date of such payment
are referred to herein as the Closing Date. As used herein, the term "Business
Day" means any day other than a day on which banks are permitted or required to
be closed in New York City.
Payment for the Securities shall be made against delivery to the
nominee of the Depository Trust Company for the respective accounts of the
several Underwriters of one or more global notes (the "Global Notes")
representing Securities, with any transfer taxes payable in connection with the
transfer to the Underwriters of the Securities duly paid by the Company. The
Global Notes will be made available for inspection and packaging by the
Underwriters at the office of SunTrust Bank, Atlanta, 58 Edgewood Avenue, Annex
4th Floor, Atlanta, Georgia 30303 not later than 1:00 P.M., New York City time,
on the Business Day prior to the Closing Date.
4. The Company represents and warrants to each Underwriter that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary
prospectus filed as part of the Registration Statement as originally filed
or as part of any amendment thereto, or filed pursuant to Rule 424 under
the Securities Act, complied when so filed in all material respects with
the Securities Act,
3
<PAGE>
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, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information relating to the Underwriters
furnished to the Company in writing by the Underwriters expressly for use
therein;
(b) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
instituted or threatened by the Commission; and the Registration Statement
and the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) comply, or will comply, as
the case may be, in all material respects with the Securities Act and the
Trust Indenture Act of 1939, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Trust Indenture Act") and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the date of the
Prospectus and any amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances in which they were made, not misleading, and the
Prospectus, as amended or supplemented at the Closing Date, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that the
foregoing representations and warranties shall not apply to (i) that part
of the Registration Statement which constitutes the Statement of
Eligibility and Qualification (Form T-1) of the Trustee under the Trust
Indenture Act, and (ii) statements or omissions in the Registration
Statement
4
<PAGE>
or the Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter expressly for use therein;
(c) the documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act, and none of such documents contained
an untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and any further documents so
filed and incorporated by reference in the Prospectus, when such documents
are filed with the Commission, will conform in all material respects to the
requirements of the Exchange Act, and will not contain any untrue statement
of a material fact necessary to make the statement therein, in the light of
the circumstances under which they were made, not misleading;
(d) the financial statements, and the related notes thereto, included
or incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position, results of
operations and changes in consolidated cash flows of the entities purported
to be shown thereby, at the dates and for the periods specified; said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis, and the
supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be stated
therein; and the pro forma financial information, and the related notes
thereto, included or incorporated by reference in the Registration
Statement and the Prospectus has been prepared in accordance with the
applicable requirements of the Securities Act and the Exchange Act, as
applicable, and is based upon good faith estimates and assumptions believed
by the Company to be reasonable;
5
<PAGE>
(e) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
change in the capital stock or capitalization of the Company or any of its
subsidiaries, or any material adverse change, or any development involving
a prospective material adverse change, in or affecting the general affairs,
business, prospects, management, 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
except as set forth or contemplated in the Prospectus neither the Company
nor any of its subsidiaries has entered into any transaction or agreement
(whether or not in the ordinary course of business) material to the Company
and its subsidiaries taken as a whole;
(f) the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the state of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so qualified
or in good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole;
(g) each of the Company's subsidiaries has been duly incorporated and
is validly existing as a corporation under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each jurisdiction in
which it owns or leases properties, or conducts any business, so as to
require
6
<PAGE>
such qualification, other than where the failure to be so qualified or in
good standing would not have a material adverse effect on the Company and
its subsidiaries taken as a whole; and all the outstanding shares of
capital stock of each subsidiary of the Company have been duly authorized
and validly issued, are fully-paid and non-assessable, and are owned by the
Company, directly or indirectly, free and clear of all liens, encumbrances,
security interests and claims;
(h) this Agreement has been duly authorized, executed and delivered
by the Company;
(i) the Securities have been duly authorized, and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and binding
obligations of the Company entitled to the benefits provided by the
Indenture; the Indenture has been duly authorized and upon effectiveness of
the Registration Statement will have been duly qualified under the Trust
Indenture Act and, when executed and delivered by the Company and the
Trustee, the Indenture will constitute a valid and binding instrument; and
the Securities and the Indenture will conform to the descriptions thereof
in the Prospectus;
(j) neither the Company nor any of its subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or in
default under, its Certificate of Incorporation or By-Laws or any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them or any of their respective properties is bound,
except for violations and defaults which individually and in the aggregate
are not material to the Company and its subsidiaries taken as a whole or to
the holders of the Securities; the issue and sale of the Securities and the
performance by the Company with all of its obligations under the
Securities, the Indenture and this Agreement and the consummation of
7
<PAGE>
the transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument 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 any such action result in any
violation of the provisions of the Certificate of Incorporation or the
By-Laws of the Company or any applicable law or statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company, its subsidiaries or any of their respective
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Securities or the consummation by
the Company of the transactions contemplated by this Agreement or the
Indenture, except such consents, approvals, authorizations, registrations
or qualifications as have been obtained under the Securities Act, the Trust
Indenture Act and as may be required under state securities or Blue Sky
Laws in connection with the purchase and distribution of the Securities by
the Underwriters;
(k) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits, proceedings
pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries or any of their respective
properties or to which the Company or any of its subsidiaries is or may be
a party or to which any property of the Company or any of its subsidiaries
is or may be the subject which, if determined adversely to the Company or
any of its subsidiaries, could individually or in the aggregate have, or
reasonably be expected to have, a material adverse effect on the general
affairs, business, prospects, management, financial position,
8
<PAGE>
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others; and there are no statutes,
regulations, contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which are not
filed or described as required;
(l) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company and its subsidiaries and Ernst & Young LLP, who
have certified certain financial statements of Marcus Restaurants, Inc.'s
Applebee's operations, are each independent public accountants as required
by the Securities Act;
(m) the Company and its subsidiaries have good and marketable title
in fee simple to all items of real property free and clear of all liens,
encumbrances and defects except such as are described or referred to in the
Prospectus or such as do not materially affect the value of such property
and do not interfere with the use made or proposed to be made of such
property by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are held by
them under valid, existing and enforceable leases with such exceptions as
are not material and do not interfere with the use made or proposed to be
made of such property and buildings by the Company or its subsidiaries;
(n) the Company and its subsidiaries are (i) in compliance with any
and all applicable foreign, Federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to
9
<PAGE>
conduct their respective businesses and (iii) are in compliance with all
terms and conditions of any such permit, license or approval, except where
such noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms
and conditions of such permits, licenses or approvals would not,
individually or in the aggregate, result in a material adverse effect on
the condition, financial or otherwise, or on the earnings, business,
prospects or operations of the Company and its subsidiaries, taken as a
whole. Costs and liabilities associated with or arising in connection with
Environmental Laws would not, singly or in the aggregate, have a material
adverse effect on the condition, financial or otherwise, or on the
earnings, business, prospects or operations of the Company and its
subsidiaries, taken as a whole;
(o) in the ordinary course of its business, the Company conducts Phase
I environmental assessments of properties it intends to purchase. Costs
and liabilities associated with or arising in connection with Environmental
Laws (including, without limitation, costs and expenses required for clean-
up or remediation of any conditions identified in such Phase I assessments)
would not, individually or in the aggregate, have a material adverse effect
on the condition, financial or otherwise, or on the earnings, business,
prospects or operations of the Company and its subsidiaries, taken as a
whole;
(p) the Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(q) the fair salable value of the assets of the Company exceeds the
amount that will be required to be paid on or in respect of the existing
debts and other
10
<PAGE>
liabilities (including contingent liabilities) of the Company as they
mature; the assets of the Company do not constitute unreasonably small
capital to carry out its business as conducted or as proposed to be
conducted; the Company does not intend to, and does not believe that the
Company will, incur debts beyond its ability to pay such debts as they
mature; upon the issuance of the Securities, the fair salable value of the
assets of the Company and its subsidiaries taken as a whole, will exceed
the amount that will be required to be paid on or in respect of the
existing debts and other liabilities (including contingent liabilities) of
the Company and its subsidiaries, taken as a whole, as they mature; the
assets of the Company and its subsidiaries do not, and upon the issuance of
the Securities will not, constitute unreasonably small capital for the
Company and its subsidiaries to carry out their respective businesses as
now conducted as proposed to be conducted including the capital needs of
the Company and its subsidiaries, and projected capital requirements of the
business conducted by the Company and each of its subsidiaries, and
projected capital requirements and capital availability thereof; and the
Company does not intend to, and does not intend to permit any of its
subsidiaries to, incur debts beyond their respective ability to pay such
debts as they mature;
(r) the Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida), relating to doing
business with the Government of Cuba or with any person or affiliate
located in Cuba; and
(s) each of the Company and its subsidiaries owns, possesses or has
obtained all licenses, permits, certificates, consents, orders, approvals
and other authorizations from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities
(including foreign regulatory agencies), all self-regulatory organizations
and all courts and other tribunals, domestic or foreign,
11
<PAGE>
necessary to own or lease, as the case may be, and to operate its
properties and to carry on its business as conducted as of the date hereof,
and neither the Company nor any such subsidiary has received any actual
notice of any proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other
authorization, except as described in the Registration Statement and the
Prospectus; and each of the Company and its subsidiaries is in compliance
with all laws and regulations relating to the conduct of its business as
conducted as of the date hereof.
5. The Company covenants and agrees with each of the several
Underwriters as follows:
(a) to file the final Prospectus with the Commission within the time
periods specified by Rule 424; and to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offering or sale of the Securities; and to furnish copies of the Prospectus
to the Underwriters in New York City prior to 10:00 a.m., New York City
time, on the Business Day next succeeding the date of this Agreement in
such quantities as the Underwriters may reasonably request;
(b) to deliver, at the expense of the Company, to the Underwriters
three signed copies of the Registration Statement (as originally filed) and
each amendment thereto, in each case including exhibits and documents
incorporated by reference therein, and, during the period mentioned in
paragraph (e) below, to each of the Underwriters as many copies of the
Prospectus (including all amendments and supplements thereto) as the
Underwriters may reasonably request;
12
<PAGE>
(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus, to furnish to the Underwriters a copy of the
proposed amendment or supplement for review and not to file any such
proposed amendment or supplement to which the Underwriters reasonably
object;
(d) to advise the Underwriters promptly, and to confirm such advice
in writing, (i) when any amendment to the Registration Statement has been
filed or becomes effective, (ii) when any supplement to the Prospectus or
any amendment to the Prospectus has been filed and to furnish the
Underwriters with copies thereof, (iii) of any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of any order preventing or suspending the
use of any preliminary Prospectus or the Prospectus or the initiation or
threatening of any proceeding for that purpose, (v) of the occurrence of
any event, within the period referenced in paragraph (e) below, as a result
of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, and (vi) of the receipt by the Company of any notification with
respect to any suspension of the qualification of the Securities for offer
and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and to use its best efforts to prevent the
issuance of any such stop order, or of any order preventing or suspending
the use of any preliminary prospectus or the Prospectus, or of any order
suspending any such qualification of the Securities, or notification of any
such order thereof and, if issued, to obtain as soon as possible the
withdrawal thereof;
13
<PAGE>
(e) if, during such period of time after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by law to
be delivered in connection with sales by an Underwriter or dealer, any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
not misleading, or if it is necessary to amend or supplement the Prospectus
to comply with law, forthwith to prepare and furnish, at the expense of the
Company, to the Underwriters and to the dealers (whose names and addresses
the Underwriters will furnish to the Company) to which Securities may have
been sold by the Underwriters and to any other dealers upon request, such
amendments or supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
be misleading or so that the Prospectus will comply with law;
(f) to endeavor to qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Underwriters
shall reasonably request and to continue such qualification in effect so
long as reasonably required for distribution of the Securities; PROVIDED
that the Company shall not be required to file a general consent to service
of process in any jurisdiction;
(g) to make generally available to its security holders and to the
Underwriters as soon as practicable an earnings statement covering a period
of at least twelve months beginning with the first fiscal quarter of the
Company occurring after the date of this Agreement, which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder;
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(h) so long as the Securities are outstanding, to furnish to the
Underwriters copies of all reports or other communications (financial or
other) furnished to holders of the Securities, and copies of any reports
and financial statements furnished to or filed with the Commission or any
national securities exchange;
(i) during the period beginning on the date hereof and continuing to
and including the Business Day following the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of or
guaranteed by the Company which are substantially similar to the
Securities;
(j) whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated to pay or cause to be paid
all costs and expenses incident to the performance of its obligations
hereunder, including without limiting the generality of the foregoing, all
costs and expenses (i) incident to the preparation, issuance, execution,
authentication and delivery of the Securities, including any expenses of
the Trustee, (ii) incident to the preparation, printing and filing under
the Securities Act of the Registration Statement, the Prospectus and any
preliminary prospectus (including in each case all exhibits, amendments and
supplements thereto), (iii) incurred in connection with the registration or
qualification and determination of eligibility for investment of the
Securities under the laws of such jurisdictions as the Underwriters may
designate (including fees of counsel for the Underwriters and its
disbursements), (iv) in connection with the listing of the Securities on
any stock exchange, (v) related to any filing with, and clearance of the
offering by, the National Association of Securities Dealers, Inc., (vi) in
connection with the printing (including word processing and duplication
costs) and delivery of this Agreement, the Indenture, the Preliminary and
Supplemental Blue Sky Memoranda and any Legal Investment Survey and the
furnishing to the Underwriters and dealers of copies of the Registration
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Statement and the Prospectus, including mailing and shipping, as herein
provided, (vii) payable to rating agencies in connection with the rating of
the Securities, (viii) any expenses incurred by the Company in connection
with a "road show" presentation to potential investors and (ix) the cost
and charges of any transfer agent; and
(k) to use the net proceeds received by the Company from the sale of
the Securities pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds".
6. The several obligations of the Underwriters hereunder to purchase
the Securities on the Closing Date are subject to the performance by the Company
of its obligations hereunder and to the following additional conditions:
(a) no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by the
Commission; the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed for such
filing by the rules and regulations under the Securities Act and in
accordance with Section 5(a) hereof; and all requests for additional
information shall have been complied with to your satisfaction;
(b) the representations and warranties of the Company contained
herein are true and correct on and as of the Closing Date as if made on and
as of the Closing Date and the Company shall have complied with all
agreements and all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date;
(c) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of (i) any downgrading, (ii) any
16
<PAGE>
intended or potential downgrading or (iii) any review or possible change
that does not indicate an improvement, in the rating accorded any
securities of or guaranteed by the Company by any "nationally recognized
statistical rating organization", as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in
the Prospectus there shall not have been any change in the capital stock or
capitalization of the Company or any of its subsidiaries or material
adverse change or any development involving a prospective material adverse
change, in or affecting the general affairs, business, prospects,
management, 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
the judgment of the Underwriters makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on the
Closing Date on the terms and in the manner contemplated in the Prospectus;
and neither the Company nor any of its subsidiaries has sustained since the
date of the latest audited financial statement included or incorporated by
reference in the Prospectus any material 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;
(e) the Underwriters shall have received on and as of the Closing
Date a certificate of an executive officer of the Company with specific
knowledge about the Company's financial matters satisfactory to you to the
effect set forth in subsections (a) through (c) (with respect to the
respective representations warranties, agreements, and conditions of the
Company) of this Section and to the further effect that there
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has not occurred any material adverse change, or any development involving
a prospective material adverse change, in or affecting the general affairs,
business, prospects, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries taken as a
whole from that set forth or contemplated in the Registration Statement;
(f) Kilpatrick & Cody, counsel for the Company, shall have furnished
to the Underwriters their written opinion, dated the Closing Date, in form
and substance satisfactory to the Underwriters, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Prospectus;
(ii) the Company has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not
have a material adverse effect on the Company and its subsidiaries
taken as a whole;
(iii) each of the Company's subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws
of its jurisdiction of incorporation with power and authority
(corporate and other) to own its properties and conduct its business
as described in the Prospectus and has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to
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<PAGE>
require such qualification, other than where the failure to be so
qualified and in good standing would not have a material adverse
effect on the Company and its subsidiaries taken as a whole; and all
of the outstanding shares of capital stock of each subsidiary have
been duly and validly authorized and issued, are fully paid and
non-assessable, and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims;
(iv) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits or
proceedings pending or, to the best of such counsel's knowledge,
threatened against or affecting the Company or any of its subsidiaries
or any of their respective properties or to which the Company or any
of its subsidiaries is or may be a party or to which any property of
the Company or its subsidiaries is or may be the subject which, if
determined adversely to the Company or any of its subsidiaries, could
individually or in the aggregate have, or reasonably be expected to
have, a material adverse effect on the general affairs, business,
prospects, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole; to the best of such counsel's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others; and such counsel does not know of any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described
or filed as required;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
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(vi) the Securities have been duly authorized, executed and
delivered by the Company and, when duly authenticated in accordance
with the terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will
constitute valid and binding obligations of the Company entitled to
the benefits provided by the Indenture;
(vii) the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding
instrument of the Company; and the Indenture has been duly qualified
under the Trust Indenture Act;
(viii) neither the Company nor any of its subsidiaries is, or with
the giving of notice or lapse of time or both would be, in violation
of or in default under, its Certificate of Incorporation or By-Laws or
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 it or any of them or
any of their respective properties is bound, except for violations and
defaults which individually and in the aggregate are not material to
the Company and its subsidiaries taken as a whole or to the holders of
the Securities; the issue and sale of the Securities and the
performance by the Company of its obligations under the Securities,
the Indenture and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other material 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
20
<PAGE>
its subsidiaries is subject, nor will any such action result in any
violation of the provisions of the Certificate of Incorporation, or
the By-Laws of the Company or any applicable law or statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company, its subsidiaries or any of their
respective properties;
(ix) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental
agency or body is required for the issue and sale of the Securities or
the consummation of the other transactions contemplated by this
Agreement or the Indenture, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as
have been obtained under the Securities Act and the Trust Indenture
Act and as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
Underwriters;
(x) the statements in the Prospectus under "[ ]",
"Description of Debt Securities" and "Plan of Distribution", in the
Prospectus, in "Item 3 -- Legal Proceedings" of Part 1 of the
Company's most recent Annual Report on Form 10-K, incorporated by
reference in the Prospectus and in the Registration Statement in Item
15, insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly present
the information called for with respect to such legal matters,
documents or proceedings;
(xi) the Company is not and, after giving effect to the offering
and sale of the Securities, will not be an "investment company" or
entity "controlled" by an "investment company", as such terms are used
in the Investment Company Act;
21
<PAGE>
(xii) each of the Company and its subsidiaries owns, possesses
or has obtained all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all declarations
and filings with, all federal, state local and other governmental
authorities (including foreign regulatory agencies), all self-
regulatory organizations and all courts and other tribunals, domestic
or foreign, necessary to own or lease, as the case may be, and to
operate its properties and to carry on its business as conducted as of
the date hereof, and neither the Company nor any such subsidiary has
received any actual notice of any proceeding relating to revocation or
modification of any such license, permit, certificate, consent, order,
approval or other authorization, except as described in the
Registration Statement and the Prospectus; and each of the Company and
its subsidiaries is in compliance with all laws and regulations
relating to the conduct of its business as conducted as of the date of
the Prospectus;
(xiii) the Company and its subsidiaries have good and marketable
title in fee simple to all real property owned by them, free and clear
of all liens, encumbrances and defects except such as are described or
referred to in the Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by
the Company and its subsidiaries are held by them under valid,
existing and enforceable leases with such exceptions as are not
material and do not interfere with the use made or proposed to be made
of such property and buildings by the Company or its subsidiaries; and
22
<PAGE>
(xiv) such counsel (A) is of the opinion that each document
incorporated by reference in the Registration Statement and the
Prospectus as amended or supplemented (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) complied as to form when filed with the
Commission in all material respects with the Exchange Act, and the
rules and regulations of the Commission thereunder (B) believes that
(except for the financial statements included therein, as to which
such counsel need express no belief) each part of the registration
statement (including the documents incorporated by reference therein)
filed with the Commission pursuant to the Securities Act relating to
the Securities, when such part became effective, did not contain any
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, (C) is of the opinion that the Registration
Statement and the Prospectus and any amendments or supplements thereto
(except for the financial statements included therein as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Securities Act and the Trust
Indenture Act and (D) believes that (except for the financial
statements included therein as to which such counsel need express no
belief) the Registration Statement and the Prospectus, on the date of
this Agreement, did not contain any 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, in the light of the
circumstances under which they were made, not misleading, and that the
Prospectus as amended or supplemented, if applicable, does not contain
any 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
23
<PAGE>
circumstances under which they were made, not misleading.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the United
States and the States of New York and Georgia, to the extent such counsel
deems proper and to the extent specified in such opinion, if at all, upon
an opinion or opinions (in form and substance reasonably satisfactory to
Underwriters' counsel) of other counsel reasonably acceptable to the
Underwriters' counsel, familiar with the applicable laws; and (B) as to
matters of fact, to the extent such counsel deems proper, on certificates
of responsible officers of the Company and certificates or other written
statements of officials of jurisdictions having custody of documents
respecting the corporate existence or good standing of the Company. The
opinion of such counsel for the Company shall state that the opinion of any
such other counsel upon which they relied is in form satisfactory to such
counsel and, in such counsel's opinion, the Underwriters and they are
justified in relying thereon. With respect to the matters to be covered in
subparagraph (xiv) above, counsel may state that their opinion and belief
is based upon their participation in the preparation of the Registration
Statement and the Prospectus and any amendment or supplement thereto but is
without independent check or verification except as specified;
The opinion of Kilpatrick & Cody described above shall be rendered to
the Underwriters at the request of the Company and shall so state therein.
(g) on the date hereof and also on the Closing Date, KPMG Peat
Marwick LLP [and Ernst & Young] shall have furnished to the Underwriters
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to the Underwriters, containing statements and
information of the type customarily included in accountants' "comfort
letters" to
24
<PAGE>
underwriters with respect to the financial statements and certain financial
information contained or incorporated by reference in the Registration
Statement and the Prospectus;
(h) the Underwriters shall have received on and as of the Closing
Date an opinion of Davis Polk & Wardwell, counsel to the Underwriters, with
respect to the validity of the Indenture and the Securities, the
Registration Statement, the Prospectus and other related matters as the
Underwriters may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them
to pass upon such matters; and
(i) on or prior to the Closing Date the Company shall have furnished
to the Underwriters such further certificates and documents as you shall
reasonably request.
7. The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, the legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
such Underwriter expressly for use therein.
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<PAGE>
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter expressly for use in the Registration Statement,
the Prospectus, any amendment or supplement thereto, or any preliminary
prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to
26
<PAGE>
any local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate firm for
the Underwriters and such control persons of the Underwriters shall be
designated in writing by J.P. Morgan Securities Inc. and be consented to in
writing by Raymond James Associates, Inc., which consent shall not be
unreasonably withheld, and any such separate firm for the Company, its
directors, its officers who sign the Registration Statement and such control
persons of the Company shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested an Indemnifying Person
to reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the Indemnifying Person
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such Indemnifying Person of the aforesaid request and (ii)
such Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying
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Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand 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 in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Securities (before
deducting expenses) received by the Company and the total underwriting discounts
and the commissions received by the Underwriters, in each case as set forth in
the table on the cover of the Prospectus, bear to the aggregate public offering
price of the Securities. The relative fault of the Company on the one hand and
the Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
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 contribution pursuant to this Section 7 were determined by PRO RATA
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the
28
<PAGE>
immediately preceding paragraph. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall
an Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of Securities set forth opposite their names in
Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its officers or directors or any other person controlling
the Company and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Underwriters, by notice given to
the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been
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suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and which, in
your judgment, makes it impracticable to market the Securities on the terms and
in the manner contemplated in the Prospectus.
9. This Agreement shall become effective upon the execution and
delivery hereof by the parties hereto.
If on the Closing Date any one of the Underwriters shall fail or
refuse to purchase Securities which it or they have agreed to purchase hereunder
on such date, and the aggregate principal amount of Securities which such
defaulting Underwriter agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of the Securities to be purchased on
such date, the other Underwriter shall be obligated to purchase the Securities
which such defaulting Underwriter agreed but failed or refused to purchase on
such date; PROVIDED that in no event shall the principal amount of Securities
that any Underwriter has agreed to purchase pursuant to Section 1 be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such principal
amount of Securities without the written consent of such Underwriter. If on the
Closing Date any Underwriter shall fail or refuse to purchase Securities which
it has agreed to purchase hereunder on such date, and the aggregate principal
amount of Securities with respect to which such default occurs is more than one-
tenth of the aggregate principal amount of Securities to be purchased on such
date, and arrangements satisfactory to the other Underwriter and the Company for
the purchase of such
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Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of the non-defaulting Underwriter or the
Company. In any such case either you or the Company shall be the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriter or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and expenses of its counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of Securities.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, the Underwriters, any controlling persons referred to herein and
their respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
12. Any action by the Underwriters hereunder may be taken jointly or
by J.P. Morgan Securities Inc., alone and any such action taken by J.P. Morgan
Securities Inc. alone shall be binding upon the Underwriters. All notices and
other communications hereunder shall be in writing and
31
<PAGE>
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be given to them
at the following address: J.P. Morgan Securities, Inc., 60 Wall Street, New
York, New York 10260-0060; Attention: Syndicate Department; and Raymond James &
Associates, Inc., 880 Carillon Parkway, St. Petersburg, Florida 33716;
Attention: Syndicate Department. Notices to the Company shall be given to it at
Hancock at Washington, Madison, Georgia 30650-1304; Attention: Treasury
Department.
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
14. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
If the foregoing is in accordance with your understanding, please sign
and return four counterparts hereof.
Very truly yours,
APPLE SOUTH, INC.
By:
---------------------------
Title:
Accepted: , 19
---------------- --
J.P. Morgan Securities Inc.
By:
---------------------------
Title:
Raymond James & Associates, Inc.
32
<PAGE>
By:
---------------------------
Title
33
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
APPLE SOUTH, INC.
AS THE COMPANY
AND
SUNTRUST BANK, ATLANTA
AS TRUSTEE
-----------------------------------
INDENTURE
DATED AS OF MAY 1, 1996
-----------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . .
SECTION 1.2 Other Definitions . . . . . . . . . . . . . . . . . . .
SECTION 1.3 Incorporation by Reference of
Trust Indenture Act . . . . . . . . . . . . . . . . . .
SECTION 1.4 Rules of Construction . . . . . . . . . . . . . . . . .
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating . . . . . . . . . . . . . . . . . . . .
SECTION 2.2 Execution and Authentication. . . . . . . . . . . . . .
SECTION 2.3 Amount Unlimited; Issuable in
Series. . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 2.4 Denomination and Date of
Securities; Payments of
Interest. . . . . . . . . . . . . . . . . . . . . . . .
SECTION 2.5 Registrar and Paying Agent;
Agents Generally. . . . . . . . . . . . . . . . . . . .
SECTION 2.6 Paying Agent to Hold Money in
Trust . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 2.7 Transfer and Exchange . . . . . . . . . . . . . . . . .
SECTION 2.8 Replacement Securities
SECTION 2.9 Outstanding Securities. . . . . . . . . . . . . . . . .
SECTION 2.10 Temporary Securities. . . . . . . . . . . . . . . . . .
SECTION 2.11 Cancellation. . . . . . . . . . . . . . . . . . . . . .
SECTION 2.12 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . .
SECTION 2.13 Defaulted Interest. . . . . . . . . . . . . . . . . . .
SECTION 2.14 Series May Include Tranches . . . . . . . . . . . . . .
SECTION 2.15 Computation of Interest . . . . . . . . . . . . . . . .
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article. . . . . . . . . . . . . . . .
- --------------------
*Note: The Table of Contents shall not for any purposes be deemed
to be a part of the indenture.
i
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Page
----
SECTION 3.2 Notice of Redemption; Partial
Redemptions . . . . . . . . . . . . . . . . . . . . . .
SECTION 3.3 Payment of Securities Called
for Redemption. . . . . . . . . . . . . . . . . . . . .
SECTION 3.4 Exclusion of Certain
Securities from Eligibility
for Selection for Redemption. . . . . . . . . . . . . .
SECTION 3.5 Mandatory and Optional
Sinking Funds . . . . . . . . . . . . . . . . . . . . .
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities . . . . . . . . . . . . . . . . .
SECTION 4.2 Maintenance of Office or
Agency. . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 4.3 Certificate to Trustee. . . . . . . . . . . . . . . . .
SECTION 4.4 Reports by the Company. . . . . . . . . . . . . . . . .
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc.. . . . . . . . . . . . . .
SECTION 5.2 Successor Substituted . . . . . . . . . . . . . . . . .
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default . . . . . . . . . . . . . . . . . . .
SECTION 6.2 Acceleration. . . . . . . . . . . . . . . . . . . . . .
SECTION 6.3 Other Remedies. . . . . . . . . . . . . . . . . . . . .
SECTION 6.4 Waiver of Past Defaults . . . . . . . . . . . . . . . .
SECTION 6.5 Control by Majority . . . . . . . . . . . . . . . . . .
SECTION 6.6 Limitation on Suits . . . . . . . . . . . . . . . . . .
SECTION 6.7 Rights of Holders to Receive
Payment . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 6.8 Collection Suit by Trustee. . . . . . . . . . . . . . .
SECTION 6.9 Trustee May File Proofs of
Claim . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 6.10 Application of Proceeds . . . . . . . . . . . . . . . .
SECTION 6.11 Restoration of Rights and
Remedies. . . . . . . . . . . . . . . . . . . . . . . .
SECTION 6.12 Undertaking for Costs . . . . . . . . . . . . . . . . .
ii
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Page
----
SECTION 6.13 Rights and Remedies
Cumulative. . . . . . . . . . . . . . . . . . . . . . .
SECTION 6.14 Delay or Omission Not Waiver. . . . . . . . . . . . . .
ARTICLE 7
TRUSTEE
SECTION 7.1 General . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 7.2 Certain Rights of Trustee . . . . . . . . . . . . . . .
SECTION 7.3 Individual Rights of Trustee. . . . . . . . . . . . . .
SECTION 7.4 Trustee's Disclaimer. . . . . . . . . . . . . . . . . .
SECTION 7.5 Notice of Default . . . . . . . . . . . . . . . . . . .
SECTION 7.6 Reports by Trustee to
Holders . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 7.7 Compensation and Indemnity. . . . . . . . . . . . . . .
SECTION 7.8 Replacement of Trustee. . . . . . . . . . . . . . . . .
SECTION 7.9 Successor Trustee by Merger,
Etc.. . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 7.10 Eligibility . . . . . . . . . . . . . . . . . . . . . .
SECTION 7.11 Money Held in Trust . . . . . . . . . . . . . . . . . .
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 Termination of Company's
Obligations . . . . . . . . . . . . . . . . . . . . . .
SECTION 8.2 Defeasance and Discharge of
Indenture . . . . . . . . . . . . . . . . . . . . . . .
SECTION 8.3 Defeasance of Certain
Obligations . . . . . . . . . . . . . . . . . . . . . .
SECTION 8.4 Application of Trust Money. . . . . . . . . . . . . . .
SECTION 8.5 Repayment to Company. . . . . . . . . . . . . . . . . .
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders. . . . . . . . . . . . . . .
SECTION 9.2 With Consent of Holders . . . . . . . . . . . . . . . .
SECTION 9.3 Revocation and Effect of
Consent
SECTION 9.4 Notation on or Exchange of
Securities. . . . . . . . . . . . . . . . . . . . . . .
SECTION 9.5 Trustee to Sign Amendments,
Etc.. . . . . . . . . . . . . . . . . . . . . . . . . .
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Page
----
SECTION 9.6 Conformity with Trust
Indenture Act . . . . . . . . . . . . . . . . . . . . .
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Trust Indenture Act of 1939 . . . . . . . . . . . . . .
SECTION 10.2 Notices . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 10.3 Certificate and Opinion as to
Conditions Precedent. . . . . . . . . . . . . . . . . .
SECTION 10.4 Statements Required in Certificate or Opinion . . . . .
SECTION 10.5 Evidence of Ownership . . . . . . . . . . . . . . . . .
SECTION 10.6 Rules by Trustee, Paying
Agent or Registrar. . . . . . . . . . . . . . . . . . .
SECTION 10.7 Payment Date Other Than a Business Day. . . . . . . . .
SECTION 10.8 Governing Law . . . . . . . . . . . . . . . . . . . . .
SECTION 10.9 No Adverse Interpretation of
Other Agreements. . . . . . . . . . . . . . . . . . . .
SECTION 10.10 Successors. . . . . . . . . . . . . . . . . . . . . . .
SECTION 10.11 Duplicate Originals . . . . . . . . . . . . . . . . . .
SECTION 10.12 Separability. . . . . . . . . . . . . . . . . . . . . .
SECTION 10.13 Table of Contents, Headings,
Etc.. . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 10.14 Incorporators, Stockholders,
Officers and Directors of
Company Exempt from
Individual Liability. . . . . . . . . . . . . . . . . .
SECTION 10.15 Judgment Currency . . . . . . . . . . . . . . . . . . .
SIGNATURES
iv
<PAGE>
INDENTURE, dated as of May 1, 1996, between Apple South, Inc., a
Georgia corporation, as the Company, and SunTrust Bank, Atlanta, a Georgia
banking corporation, as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time to time
of its debentures, notes or other evidences of indebtedness to be issued in one
or more series (the "Securities") up to such principal amount or amounts as may
from time to time be authorized in accordance with the terms of this Indenture
and to provide, among other things, for the authentication, delivery and
administration of the Securities, the Company has duly authorized the execution
and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Company and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective holders from time to
time of the Securities or of any and all series thereof and of the coupons, if
any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS.
"Agent" means any Registrar, Paying Agent, transfer agent or
Authenticating Agent.
"Authorized Newspaper" means a newspaper (which, in the case of The
City of New York, will, if practicable, be The Wall Street Journal (Eastern
Edition) and in the case of London, will, if practicable, be the Financial Times
(London Edition)) published in an official language of the country of
publication customarily published at least once a day for at least five days in
each calendar week and of general circulation in The City of New York or London,
as applicable. If it shall be impractical in the opinion of the Trustee to make
any publication of any notice required
<PAGE>
hereby in an Authorized Newspaper, any publication or other notice in lieu
thereof which is made or given with the approval of the Trustee shall constitute
a sufficient publication of such notice.
"Board Resolution" means one or more resolutions of the board of
directors of the Company or any authorized committee thereof, certified by the
secretary or an assistant secretary of the Company to have been duly adopted and
to be in full force and effect on the date of certification, and delivered to
the Trustee.
"Business Day" means, with respect to any Security, a day that is not
a day on which banking institutions are authorized or required by law or
regulation to close, in the city (or in any of the cities, if more than one)
unless otherwise specified, in which amounts are payable, as specified in the
form of such Security.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's capital stock or equity, including,
without limitation, all Common Stock and Preferred Stock.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding or
issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article 5 of this Indenture
and thereafter means the successor.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at [
2
<PAGE>
]Attention: Corporate Trust Trustee
Administration.
"Default" means any Event of Default as defined in Section 6.1 and any
event that is, or after notice or passage of time or both would be, an Event of
Default.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities, the
Person designated as Depositary by the Company pursuant to Section 2.3 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Registered Global
Securities of that series.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in the United
States of America at the date of any computation required or permitted
hereunder.
"Holder" or "Securityholder" means the registered holder of any
Security with respect to Registered Securities and the bearer of any
Unregistered Security or any coupon appertaining thereto, as the case may be.
"Indenture" means this Indenture as originally executed or as it may
be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture and shall include the forms and terms of the
Securities of each series established as contemplated pursuant to Sections 2.1
and 2.3.
"Non-U.S. person" means a non-U.S. person for purposes of the United
States Internal Revenue Code.
"Officer" means, with respect to the Company, the chairman of the
board of directors, the president, the executive vice president, any senior vice
president, the treasurer or any assistant treasurer, or the secretary or any
assistant secretary.
"Officers' Certificate" means a certificate signed in the name of the
Company (i) by the chairman of the board of directors, the president, the
executive vice president or
3
<PAGE>
any senior vice president and (ii) by the treasurer or any assistant treasurer,
or the secretary or any assistant secretary, complying with Section 10.4 and
delivered to the Trustee. Each such certificate shall comply with Section 314
of the Trust Indenture Act and include (except as otherwise expressly provided
in this Indenture) the statements provided in Section 10.4.
"Opinion of Counsel" means a written opinion signed by legal counsel,
who may be an employee of or counsel to the Company, satisfactory to the Trustee
and complying with Section 10.4. Each such opinion shall comply with Section
314 of the Trust Indenture Act and include the statements provided in Section
10.4, if and to the extent required thereby.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of authentication of such Security or (b) the date of
any Security (or portion thereof) for which such Security was issued (directly
or indirectly) on registration of transfer, exchange or substitution.
"Periodic Offering" means 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 stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents upon the issuance of
such Securities.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of the Indenture, including,
without limitation, all series and classes of such preferred or preference
stock.
"Principal" of a Security means the principal amount of, and, unless
the context indicates otherwise, includes any premium payable on, the Security.
"Registered Global Security" means a Security evidencing all or a part
of a series of Registered
4
<PAGE>
Securities, issued to the Depositary for such series in accordance with Section
2.2, and bearing the legend prescribed in Section 2.2.
"Registered Security" means any Security registered on the Security
Register (as defined in Section 2.5).
"Responsible Officer" means, when used with respect to the Trustee,
any vice president, assistant vice president, treasurer, assistant treasurer,
secretary, assistant secretary or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
"Securities" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture and, unless the context indicates otherwise, shall include any
coupon appertaining thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned, directly or indirectly, by such Person and one or more
other Subsidiaries of such Person.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
Article 7 and thereafter means such successor.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as it may be amended from time to time.
"UCC" means the Uniform Commercial Code, as in effect in each
applicable jurisdiction.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of
1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
5
<PAGE>
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" means 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 an agency or instrumentality
of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation 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 from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
"Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
SECTION 1.2 OTHER DEFINITIONS. Each of the following terms is
defined in the section set forth opposite such term:
TERM SECTION
Authenticating Agent 2.2
cash transaction 7.3
Dollars 4.2
Event of Default 6.1
Judgment Currency 10.15
mandatory sinking fund payment 3.5
optional sinking fund payment 3.5
Paying Agent 2.5
Permitted Liens 4.3
record date 2.4
Registrar 2.5
Required Currency 10.15
Security Register 2.5
self-liquidating paper 7.3
sinking fund payment date 3.5
tranche 2.14
6
<PAGE>
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the
provision is incorporated by reference in and made a part of this Indenture.
The following terms used in this Indenture that are defined by the Trust
Indenture Act have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by reference in the Trust Indenture Act to another
statute or defined by a rule of the Commission and not otherwise defined herein
have the meanings assigned to them therein. If any provision of this Indenture
limits, qualifies or conflicts with another provision hereof that is required to
be included in this Indenture by any of the provisions of the Trust Indenture
Act, such required provision shall control.
SECTION 1.4 RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(i) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(ii) words in the singular include the plural, and words in the plural
include the singular;
(iii) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(iv) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated; and
(v) use of masculine, feminine or neuter pronouns should not be
deemed a limitation, and the use of any such pronouns should be construed
to include, where appropriate, the other pronouns.
7
<PAGE>
ARTICLE 2
THE SECURITIES
SECTION 2.1 FORM AND DATING. The Securities of each series shall
be substantially in such form or forms (not inconsistent with this Indenture) as
shall be established by or pursuant to one or more Board Resolutions or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law, or with
any rules of any securities exchange or usage, all as may be determined by the
officers executing such Securities as evidenced by their execution of the
Securities. Unless otherwise so established, Unregistered Securities shall have
coupons attached.
SECTION 2.2 EXECUTION AND AUTHENTICATION. The chairman of the
board of directors, the president, the executive vice president or any senior
vice president and the treasurer or any assistant treasurer or the secretary or
any assistant secretary shall execute the Securities (other than coupons) for
the Company by facsimile or manual signature in the name and on behalf of the
Company. The seal of the Company, if any, shall be reproduced on the
Securities. If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an
authenticating agent (the "AUTHENTICATING AGENT") to authenticate Securities
(other than coupons). The 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 Authenticating
Agent.
A Security (other than coupons) shall not be valid until the Trustee
or Authenticating Agent manually signs the certificate of authentication on the
Security. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series having attached
thereto
8
<PAGE>
appropriate coupons, if any, executed by the Company to the Trustee for
authentication together with the applicable documents referred to below in this
Section, and the Trustee shall thereupon authenticate and make available for
delivery such Securities to or upon the written order of the Company. In
authenticating any Securities of a series, the Trustee shall be entitled to
receive prior to the first authentication of any Securities of such series, and
(subject to Article 7) shall be fully protected in relying upon, unless and
until such documents have been superseded or revoked:
(1) any Board Resolution and/or executed supplemental indenture
referred to in Sections 2.1 and 2.3 by or pursuant to which the forms
and terms of the Securities of that series were established;
(2) an Officers' Certificate setting forth the form or forms and
terms of the Securities, stating that the form or forms and terms of
the Securities of such series have been, or will be when established
in accordance with such procedures as shall be referred to therein,
established in compliance with this Indenture; and
(3) an Opinion of Counsel substantially to the effect that the
form or forms and terms of the Securities of such series have been, or
will be when established in accordance with such procedures as shall
be referred to therein, established in compliance with this Indenture
and that the supplemental indenture, to the extent applicable, and
Securities have been duly authorized and, if executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and duly paid for by the purchasers thereof on the date
of such opinion, would be entitled to the benefits of the Indenture
and would be valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms, subject
to bankruptcy, insolvency, reorganization, receivership, moratorium
and other similar laws affecting creditors' rights generally, general
principles of equity, and such other matters as shall be specified
therein.
If the Company shall establish pursuant to Section 2.3 that the
Securities of a series or a portion thereof are to be issued in the form of one
or more Registered Global
9
<PAGE>
Securities, then the Company shall execute and the Trustee shall authenticate
and make available for delivery one or more Registered Global Securities that
(i) shall represent and shall be denominated in an amount equal to the aggregate
principal amount of all of the Securities of such series issued in such form and
not yet canceled, (ii) shall be registered in the name of the Depositary for
such Registered Global Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or its custodian or
pursuant to such Depositary's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive registered form, this Security may
not be transferred except as a whole by the Depositary to 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 or a nominee of such successor Depositary."
SECTION 2.3 AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and each such
series shall rank equally and pari passu with all other unsecured and
unsubordinated debt of the Company. There shall be established in or pursuant
to a Board Resolution or one or more indentures supplemental hereto, prior to
the initial issuance of Securities of any series (subject to the last sentence
of this Section 2.3),
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
and any limitation on the ability of the Company to increase such aggregate
principal amount after the initial issuance of the Securities of that
series (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, or upon redemption of,
other Securities of the series pursuant hereto);
(3) the date or dates on which the Principal of the Securities of the
series is payable (which date or dates may be fixed or extendible);
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(4) the rate or rates (which may be fixed or variable) per annum at
which the Securities of the series shall bear interest, if any, the date or
dates from which such interest shall accrue, on which such interest shall
be payable and (in the case of Registered Securities) on which a record
shall be taken for the determination of Holders to whom interest is payable
and/or the method by which such rate or rates or date or dates shall be
determined;
(5) if other than as provided in Section 4.2, the place or places
where the Principal of and any interest on Securities of the series shall
be payable, any Registered Securities of the series may be surrendered for
exchange, notices, demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served and notice to
Holders may be published;
(6) the right, if any, of the Company to redeem Securities of the
series, in whole or in part, at its option and the period or periods within
which, the price or prices at which and any terms and conditions upon which
Securities of the series may be so redeemed, pursuant to any sinking fund
or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder thereof
and the price or prices at which and the period or periods within which and
any of the terms and conditions upon which Securities of the series shall
be redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if the Securities of the series are issuable in whole or in part
as one or more Registered Global Securities, the identity of the Depositary
for such Registered Global Security or Securities;
(10) any exceptions or additional conditions applicable to the
provisions of Section 5.1;
(11) any other events of default or covenants with respect to the
Securities of the series; and
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(12) any other terms of the Securities of the series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series and coupons, if any, appertaining
thereto shall be substantially identical, except in the case of Registered
Securities as to date and denomination, except in the case of any Periodic
Offering and except as may otherwise be provided by or pursuant to the Board
Resolution referred to above or as set forth in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time
and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to such Board Resolution or in any such
indenture supplemental hereto and any forms and terms of Securities to be issued
from time to time may be completed and established from time to time prior to
the issuance thereof by procedures described in such Board Resolution or
supplemental indenture.
SECTION 2.4 DENOMINATION AND DATE OF SECURITIES; PAYMENTS OF
INTEREST. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, if not so established with respect to Securities
of any series, in denominations of $1,000 and any integral multiple thereof.
The Securities of each series shall be numbered, lettered or otherwise
distinguished in such manner or in accordance with such plan as the Officers of
the Company executing the same may determine, as evidenced by their execution
thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest and shall be payable on the dates, established as contemplated by
Section 2.3.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Company shall default in the payment of the
interest due on such interest payment date for such series, in which case the
provisions of Section 2.13 shall apply. The term "RECORD DATE" as used with
respect to any interest payment date (except a date for
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payment of defaulted interest) for the Securities of any series shall mean the
date specified as such in the terms of the Registered Securities of such series
established as contemplated by Section 2.3, or, if no such date is so
established, the fifteenth day next preceding such interest payment date,
whether or not such record date is a Business Day.
SECTION 2.5 REGISTRAR AND PAYING AGENT; AGENTS GENERALLY. The
Company shall maintain an office or agency where Securities may be presented for
registration, registration of transfer or exchange (the "REGISTRAR") and an
office or agency where Securities may be presented for payment (the "PAYING
AGENT"), which shall be in the Borough of Manhattan, The City of New York. The
Company shall cause the Registrar to keep a register of the Registered
Securities and of their registration, transfer and exchange (the "SECURITY
REGISTER"). The Company may have one or more additional Paying Agents or
transfer agents with respect to any series.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture and the Trust Indenture Act that relate to such
Agent. The Company shall give prompt written notice to the Trustee of the name
and address of any Agent and any change in the name or address of an Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act
as such. The Company may remove any Agent upon written notice to such Agent and
the Trustee; PROVIDED that no such removal shall become effective until (i) the
acceptance of an appointment by a successor Agent to such Agent as evidenced by
an appropriate agency agreement entered into by the Company and such successor
Agent and delivered to the Trustee or (ii) notification to the Trustee that the
Trustee shall serve as such Agent until the appointment of a successor Agent in
accordance with clause (i) of this proviso. The Company or any affiliate of the
Company may act as Paying Agent or Registrar; PROVIDED that neither the Company
nor an affiliate of the Company shall act as Paying Agent in connection with the
defeasance of the Securities or the discharge of this Indenture under Article 8.
The Company initially appoints the Trustee as Registrar, Paying Agent
and Authenticating Agent. If, at any time, the Trustee is not the Registrar,
the Registrar shall make available to the Trustee ten days prior to each
interest payment date and at such other times as the Trustee may reasonably
request the names and addresses of the Holders as they appear in the Security
Register.
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SECTION 2.6 PAYING AGENT TO HOLD MONEY IN TRUST. Not later than
10:00 a.m., New York City time, on each due date of any Principal or interest on
any Securities, the Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such Principal or interest. The
Company shall require each Paying Agent other than the Trustee to agree in
writing that such Paying Agent shall hold in trust for the benefit of the
Holders of such Securities or the Trustee all money held by the Paying Agent for
the payment of Principal of and interest on such Securities and shall promptly
notify the Trustee of any default by the Company in making any such payment.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee and account for any funds disbursed, and the Trustee may at any
time during the continuance of any payment default, upon written request to a
Paying Agent, require such Paying Agent to pay all money held by it to the
Trustee and to account for any funds disbursed. Upon doing so, the Paying Agent
shall have no further liability for the money so paid over to the Trustee. If
the Company or any affiliate of the Company acts as Paying Agent, it will, on or
before each due date of any Principal of or interest on any Securities,
segregate and hold in a separate trust fund for the benefit of the Holders
thereof a sum of money sufficient to pay such Principal or interest so becoming
due until such sum of money shall be paid to such Holders or otherwise disposed
of as provided in this Indenture, and will promptly notify the Trustee in
writing of its action or failure to act as required by this Section.
SECTION 2.7 TRANSFER AND EXCHANGE. Unregistered Securities (except
for any temporary global Unregistered Securities) and coupons (except for
coupons attached to any temporary global Unregistered Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered Securities of any
series (other than a Registered Global Security, except as set forth below) may
be exchanged for a Registered Security or Registered Securities of such series
and tenor having authorized denominations and an equal aggregate principal
amount, upon surrender of such Registered Securities to be exchanged at the
agency of the Company that shall be maintained for such purpose in accordance
with Section 2.5 and upon payment, if the Company shall so require, of the
charges hereinafter provided. If the Securities of any series are issued in
both registered and unregistered form, except as otherwise established pursuant
to Section 2.3, at the option of the Holder thereof, Unregistered Securities of
any series may be
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exchanged for Registered Securities of such series and tenor having authorized
denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Company that shall
be maintained for such purpose in accordance with Section 4.2, with, in the case
of Unregistered Securities that have coupons attached, all unmatured coupons and
all matured coupons in default thereto appertaining, and upon payment, if the
Company shall so require, of the charges hereinafter provided. At the option of
the Holder thereof, if Unregistered Securities of any series, maturity date,
interest rate and original issue date are issued in more than one authorized
denomination, except as otherwise established pursuant to Section 2.3, such
Unregistered Securities may be exchanged for Unregistered Securities of such
series and tenor having authorized denominations and an equal aggregate
principal amount, upon surrender of such Unregistered Securities to be exchanged
at the agency of the Company that shall be maintained for such purpose in
accordance with Section 4.2, with, in the case of Unregistered Securities that
have coupons attached, all unmatured coupons and all matured coupons in default
thereto appertaining, and upon payment, if the Company shall so require, of the
charges hereinafter provided. Registered Securities of any series may not be
exchanged for Unregistered Securities of such series. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and make available for delivery, the Securities which the
Holder making the exchange is entitled to receive.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall be duly endorsed by, or be accompanied by
a written instrument or instruments of transfer in form satisfactory to the
Company and the Trustee duly executed by, the holder or his attorney duly
authorized in writing.
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 exchange
or registration of transfer of Securities. No service charge shall be made for
any such transaction.
Notwithstanding any other provision of this Section 2.7, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such
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Depositary or another nominee of such Depositary or by such Depositary or any
such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for any Registered Global Securities of
any series notifies the Company that it is unwilling or unable to continue as
Depositary for such Registered Global Securities or if at any time the
Depositary for such Registered Global Securities shall no longer be eligible
under applicable law, the Company shall appoint a successor Depositary eligible
under applicable law with respect to such Registered Global Securities. If a
successor Depositary eligible under applicable law for such Registered Global
Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee, upon receipt of the Company's order for the
authentication and delivery of definitive Registered Securities of such series
and tenor, will authenticate and make available for delivery Registered
Securities of such series and tenor, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of such Registered
Global Securities, in exchange for such Registered Global Securities.
The Company may at any time and in its sole discretion determine that
any Registered Global Securities of any series shall no longer be maintained in
global form. In such event the Company will execute, and the Trustee, upon
receipt of the Company's order for the authentication and delivery of definitive
Registered Securities of such series and tenor, will authenticate and make
available for delivery, Registered Securities of such series and tenor in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of such Registered Global Securities, in exchange for such
Registered Global Securities.
Any time the Registered Securities of any series are not in the form
of Registered Global Securities pursuant to the preceding two paragraphs, the
Company agrees to supply the Trustee with a reasonable supply of certificated
Registered Securities without the legend required by Section 2.2 and the Trustee
agrees to hold such Registered Securities in safekeeping until authenticated and
delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.3 with respect to
any Registered Global Security, the Depositary for such Registered Global
Security may surrender such Registered Global Security in exchange in whole or
in
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part for Registered Securities of the same series and tenor in definitive
registered form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, without service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the aggregate
principal amount of Registered Securities authenticated and delivered
pursuant to clause (i) above.
Registered Securities issued in exchange for a Registered Global
Security pursuant to this Section 2.7 shall be registered in such names and in
such authorized denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Company or the Trustee.
The Trustee or such agent shall deliver such Securities to or as directed by the
Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any
Securities to the contrary, none of the Company, the Trustee or any agent of the
Company or the Trustee shall be required to exchange any Unregistered Security
for a Registered Security if such exchange would result in adverse Federal
income tax consequences to the Company (such as, for example, the inability of
the Company to deduct from its income, as computed for Federal income tax
purposes, the interest payable on the Unregistered Securities) under then
applicable United States Federal income tax laws. The Trustee and any such
agent shall be
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entitled to rely on an Officers' Certificate or an Opinion of Counsel in
determining such result.
The Registrar shall not be required (i) to issue, authenticate,
register the transfer of or exchange Securities of any series for a period of 15
days before a selection of such Securities to be redeemed or (ii) to register
the transfer of or exchange any Security selected for redemption in whole or in
part.
SECTION 2.8 REPLACEMENT SECURITIES. If a defaced or mutilated
Security of any series is surrendered to the Trustee or if a Holder claims that
its Security of any series has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Security of
such series and tenor and principal amount bearing a number not
contemporaneously outstanding. An indemnity bond must be furnished that is
sufficient in the judgment of both the Trustee and the Company to protect the
Company, the Trustee and any Agent from any loss that any of them may suffer if
a Security is replaced. The Company may charge such Holder for its expenses and
the expenses of the Trustee (including without limitation attorneys' fees and
expenses) in replacing a Security. In case any such mutilated, defaced, lost,
destroyed or wrongfully taken Security has become or is about to become due and
payable, the Company in its discretion may pay such Security instead of issuing
a new Security in replacement thereof.
Every replacement Security is an additional obligation of the Company
and shall be entitled to the benefits of this Indenture equally and
proportionately with any and all other Securities of such series duly
authenticated and delivered hereunder.
To the extent permitted by law, the foregoing provisions of this
Section are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities.
SECTION 2.9 OUTSTANDING SECURITIES. Securities outstanding at any
time are all Securities that have been authenticated by the Trustee except for
those Securities canceled by it, those Securities delivered to it for
cancellation, those paid pursuant to Section 2.8 and those Securities described
in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be
outstanding unless and until the Trustee and
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the Company receive proof satisfactory to them that the replaced Security is
held by a holder in due course.
If the Paying Agent (other than the Company or an affiliate of the
Company) holds on the maturity date or any redemption date or date for
repurchase of the Securities money sufficient to pay Securities payable or to be
redeemed or repurchased on such date, then on and after such date such
Securities shall cease to be outstanding and interest on them shall cease to
accrue.
A Security does not cease to be outstanding because the Company or one
of its affiliates holds such Security, PROVIDED, HOWEVER, that, in determining
whether the Holders of the requisite principal amount of the outstanding
Securities shall have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
affiliate of the Company shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities as to which a Responsible Officer of the Trustee has
received written notice to be so owned shall be so disregarded. Any Securities
so owned which are pledged by the Company, or by any affiliate of the Company,
as security for loans or other obligations, otherwise than to another such
affiliate of the Company, shall be deemed to be outstanding, if the pledgee is
entitled pursuant to the terms of its pledge agreement and is free to exercise
in its discretion the right to vote such securities, uncontrolled by the Company
or by any such affiliate.
SECTION 2.10 TEMPORARY SECURITIES. Until definitive Securities of
any series are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities of such series. Temporary Securities of any
series shall be substantially in the form of definitive Securities of such
series but may have insertions, substitutions, omissions and other variations
determined to be appropriate by the Officers executing the temporary Securities,
as evidenced by their execution of such temporary Securities. If temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After the
preparation of definitive Securities of any series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series and
tenor upon surrender of such temporary Securities at the office or agency of the
Company designated for such purpose pursuant to Section 4.2, without
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charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee
shall authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Securities of such series and tenor and
authorized denominations. Until so exchanged, the temporary Securities of any
series shall be entitled to the same benefits under this Indenture as definitive
Securities of such series.
SECTION 2.11 CANCELLATION. The Company at any time may deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold.
The Registrar, any transfer agent and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee shall cancel all Securities surrendered for transfer, exchange,
payment or cancellation and shall deliver such canceled Securities to the
Company. The Company may not issue new Securities to replace Securities it has
paid in full or delivered to the Trustee for cancellation.
SECTION 2.12 CUSIP NUMBERS. The Company in issuing the Securities
may use "CUSIP" and "CINS" numbers (if then generally in use), and the Trustee
shall use CUSIP numbers or CINS numbers, as the case may be, in notices of
redemption or exchange as a convenience to Holders and no representation shall
be made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or exchange.
SECTION 2.13 DEFAULTED INTEREST. If the Company defaults in a
payment of interest on the Securities, it shall pay, or shall deposit with the
Paying Agent money in immediately available funds sufficient to pay, the
defaulted interest plus (to the extent lawful) any interest payable on the
defaulted interest (as may be specified in the terms thereof, established
pursuant to Section 2.3) to the Persons who are Holders on a subsequent special
record date, which shall mean the 15th day next preceding the date fixed by the
Company for the payment of defaulted interest, whether or not such day is a
Business Day. At least 15 days before such special record date, the Company
shall mail to each Holder and to the Trustee a notice that states the special
record date, the payment date and the amount of defaulted interest to be paid.
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SECTION 2.14 SERIES MAY INCLUDE TRANCHES. A series of Securities
may include one or more tranches (each a "TRANCHE") of Securities, including
Securities issued in a Periodic Offering. The Securities of different tranches
may have one or more different terms, including authentication dates and public
offering prices, but all the Securities within each such tranche shall have
identical terms, including authentication date and public offering price.
Notwithstanding any other provision of this Indenture, with respect to Sections
2.2 (other than the fourth paragraph thereof) through 2.4, 2.7, 2.8, 2.10, 3.1
through 3.5, 4.2, 6.1 through 6.14, 8.1 through 8.5 and 9.2, if any series of
Securities includes more than one tranche, all provisions of such sections
applicable to any series of Securities shall be deemed equally applicable to
each tranche of any series of Securities in the same manner as though originally
designated a series unless otherwise provided with respect to such series or
tranche pursuant to Section 2.3. In particular, and without limiting the scope
of the next preceding sentence, any of the provisions of such sections which
provide for or permit action to be taken with respect to a series of Securities
shall also be deemed to provide for and permit such action to be taken instead
only with respect to Securities of one or more tranches within that series (and
such provisions shall be deemed satisfied thereby), even if no comparable action
is taken with respect to Securities in the remaining tranches of that series.
SECTION 2.15 COMPUTATION OF INTEREST. Except as otherwise specified
pursuant to Section 2.3 for Securities of any series, interest on the Securities
of each series shall be computed on the basis of a 360-day year of twelve 30-day
months.
ARTICLE 3
REDEMPTION
SECTION 3.1 APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to the Securities of any series which are redeemable
before their maturity or to any sinking fund for the retirement of Securities of
a series except as otherwise specified as contemplated by Section 2.3 for
Securities of such series.
SECTION 3.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS. Notice of
redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part at the option of the Company shall be given by mailing
notice of such redemption by first class mail, postage prepaid, at least 30 days
and not more than 60 days
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prior to the date fixed for redemption to such Holders of Registered Securities
of such series at their last addresses as they shall appear upon the Security
Register of the Company. Notice of redemption to the Holders of Unregistered
Securities of any series to be redeemed as a whole or in part, who have filed
their names and addresses with the Trustee pursuant to Section 313(c)(2) of the
Trust Indenture Act, shall be given by mailing notice of such redemption, by
first class mail, postage prepaid, at least 30 days and not more than 60 days
prior to the date fixed for redemption, to such Holders at such addresses as
were so furnished to the Trustee (and, in the case of any such notice given by
the Company, the Trustee shall make such information available to the Company
for such purpose). Notice of redemption to all other Holders of Unregistered
Securities of any series to be redeemed as a whole or in part shall be published
in an Authorized Newspaper in The City of New York and in an Authorized
Newspaper in London, in each case, once in each of three successive calendar
weeks, the first publication to be not less than 30 days nor more than 60 days
prior to the date fixed for redemption. Any notice which is mailed or published
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice. Failure to give notice by
mail, or any defect in the notice to the Holder of any Security of a series
designated for redemption as a whole or in part shall not affect the validity of
the proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the CUSIP and CINS numbers of the Securities to be redeemed, the date
fixed for redemption, the redemption price, the place or places of payment, that
payment will be made upon presentation and surrender of such Securities and, in
the case of Securities with coupons attached thereto, of all coupons
appertaining thereto maturing after the date fixed for redemption, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for redemption will be
paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In case
any Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such series and
tenor in principal
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amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
On or before 10:00 a.m. New York City time on the redemption date
specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more Paying Agents (or, if
the Company is acting as its own Paying Agent, set aside, segregate and hold in
trust as provided in Section 2.6) an amount of money sufficient to redeem on the
redemption date all the Securities of such series so called for redemption at
the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If all of the outstanding Securities of a series are to
be redeemed, the Company will deliver to the Trustee at least 10 days prior to
the last date on which notice of redemption may be given to Holders pursuant to
the first paragraph of this Section 3.2 (or such shorter period as shall be
acceptable to the Trustee) an Officers' Certificate stating that all such
Securities are to be redeemed. If less than all the outstanding Securities of a
series are to be redeemed, the Company will deliver to the Trustee at least 15
days prior to the last date on which notice of redemption may be given to
Holders pursuant to the first paragraph of this Section 3.2 (or such shorter
period as shall be acceptable to the Trustee) an Officers' Certificate stating
the aggregate principal amount of such Securities to be redeemed. In case of a
redemption at the election of the Company prior to the expiration of any
restriction on such redemption, the Company shall deliver to the Trustee, prior
to the giving of any notice of redemption to Holders pursuant to this Section,
an Officers' Certificate stating that such redemption is not prohibited by such
restriction.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Company in writing of the Securities of
such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
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requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 3.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after such
date (unless the Company shall default in the payment of such Securities at the
redemption price, together with interest accrued to such date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and the unmatured coupons, if any, appertaining thereto shall be void
and, except as provided in Sections 7.11 and 8.4, such Securities shall cease
from and after the date fixed for redemption to be entitled to any benefit under
this Indenture, and the Holders thereof shall have no right in respect of such
Securities except the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption. On presentation and surrender of
such Securities at a place of payment specified in said notice, together with
all coupons, if any, appertaining thereto maturing after the date fixed for
redemption, said Securities or the specified portions thereof shall be paid and
redeemed by the Company at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption; PROVIDED that payment
of interest becoming due on or prior to the date fixed for redemption shall be
payable in the case of Securities with coupons attached thereto, to the Holders
of the coupons for such interest upon surrender thereof, and in the case of
Registered Securities, to the Holders of such Registered Securities registered
as such on the relevant record date subject to the terms and provisions of
Sections 2.4 and 2.13 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest borne by such Security.
If any Security with coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant coupons maturing after the
date fixed for redemption, the surrender of such missing coupon or coupons
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may be waived by the Company and the Trustee, if there be furnished to each of
them such security or indemnity as they may require to save each of them
harmless.
Upon presentation of any Security of any series redeemed in part only,
the Company shall execute and the Trustee shall authenticate and make available
for delivery to or on the order of the Holder thereof, at the expense of the
Company, a new Security or Securities of such series and tenor (with any
unmatured coupons attached), of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 3.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR
SELECTION FOR REDEMPTION. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an Officer of the Company and delivered
to the Trustee at least 40 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
SECTION 3.5 MANDATORY AND OPTIONAL SINKING FUNDS. The minimum
amount of any sinking fund payment provided for by the terms of the Securities
of any series is herein referred to as a "MANDATORY SINKING FUND PAYMENT," and
any payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "OPTIONAL SINKING FUND
PAYMENT." The date on which a sinking fund payment is to be made is herein
referred to as the "SINKING FUND PAYMENT DATE."
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Company may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation pursuant
to Section 2.11, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Company
through any optional
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sinking fund payment. Securities so delivered or credited shall be received or
credited by the Trustee at the sinking fund redemption price specified in such
Securities.
On or before the sixtieth day next preceding each sinking fund payment
date for any series, or such shorter period as shall be acceptable to the
Trustee, the Company will deliver to the Trustee an Officers' Certificate (a)
specifying the portion of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion to be satisfied by credit of specified
Securities of such series and the basis for such credit, (b) stating that none
of the specified Securities of such series has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of Default with
respect to such series have occurred (which have not been waived or cured) and
are continuing and (d) stating whether or not the Company intends to exercise
its right to make an optional sinking fund payment with respect to such series
and, if so, specifying the amount of such optional sinking fund payment which
the Company intends to pay on or before the next succeeding sinking fund payment
date. Any Securities of such series to be credited and required to be delivered
to the Trustee in order for the Company to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.11 to the Trustee with such
Officers' Certificate (or reasonably promptly thereafter if acceptable to the
Trustee). Such Officers' Certificate shall be irrevocable and upon its receipt
by the Trustee the Company shall become unconditionally obligated to make all
the cash payments or delivery of Securities therein referred to, if any, on or
before the next succeeding sinking fund payment date. Failure of the Company,
on or before any such sixtieth day, to deliver such Officer's Certificate and
Securities specified in this paragraph, if any, shall not constitute a default
but shall constitute, on and as of such date, the irrevocable election of the
Company (i) that the mandatory sinking fund payment for such series due on the
next succeeding sinking fund payment date shall be paid entirely in cash without
the option to deliver or credit Securities of such series in respect thereof and
(ii) that the Company will make no optional sinking fund payment with respect to
such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 (or a lesser sum if the Company shall so request with respect to
the Securities of any series), such
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cash shall be applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at the sinking fund redemption price
thereof together with accrued interest thereon to the date fixed for redemption.
If such amount shall be $50,000 (or such lesser sum) or less and the Company
makes no such request then it shall be carried over until a sum in excess of
$50,000 (or such lesser sum) is available. The Trustee shall select, in the
manner provided in Section 3.2, for redemption on such sinking fund payment date
a sufficient principal amount of Securities of such series to absorb said cash,
as nearly as may be, and shall (if requested in writing by the Company) inform
the Company of the serial numbers of the Securities of such series (or portions
thereof) so selected. Securities shall be excluded from eligibility for
redemption under this Section if they are identified by registration and
certificate number in an Officers' Certificate delivered to the Trustee at least
60 days prior to the sinking fund payment date as being owned of record and
beneficially by, and not pledged or hypothecated by either (a) the Company or
(b) an entity specifically identified in such Officers' Certificate as directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Company. The Trustee, in the name and at the expense of the
Company (or the Company, if it shall so request the Trustee in writing) shall
cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 3.2 (and with the effect provided
in Section 3.3) for the redemption of Securities of such series in part at the
option of the Company. The amount of any sinking fund payments not so applied
or allocated to the redemption of Securities of such series shall be added to
the next cash sinking fund payment for such series and, together with such
payment, shall be applied in accordance with the provisions of this Section.
Any and all sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the Principal of, and
interest on, the Securities of such series at maturity.
On or before 10:00 a.m. New York City time on each sinking fund
payment date, the Company shall pay to the Trustee in cash or shall otherwise
provide for the payment of all interest accrued to the date fixed for redemption
on Securities to be redeemed on the next following sinking fund payment date.
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The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund during the continuance of a
Default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such Default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article 6 and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 6.4 or
the Default cured on or before the sixtieth day preceding the sinking fund
payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
ARTICLE 4
COVENANTS
SECTION 4.1 PAYMENT OF SECURITIES. The Company shall pay the
Principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. The interest on Securities with
coupons attached (together with any additional amounts payable pursuant to the
terms of such Securities) 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 interest on any temporary Unregistered Securities
(together with any additional amounts payable pursuant to the terms of such
Securities) shall be paid, as to the installments of interest evidenced by
coupons attached thereto, if any, only upon presentation and surrender thereof,
and, as to the other installments of interest, if any, only upon presentation of
such Unregistered Securities for notation thereon of the payment of such
interest. The interest on Registered Securities (together with any additional
amounts payable pursuant to the terms of such Securities) shall be payable only
to the Holders thereof and at the option of the Company may be paid by mailing
checks for such interest payable to or upon the
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written order of such Holders at their last addresses as they appear on the
Security Register of the Company.
Notwithstanding any provisions of this Indenture and the Securities of
any series to the contrary, if the Company and a Holder of any Registered
Security so agree or if expressly provided pursuant to Section 2.3, payments of
interest on, and any portion of the Principal of, such Holder's Registered
Security (other than interest payable at maturity or on any redemption or
repayment date or the final payment of Principal on such Security) shall be made
by the Paying Agent, upon receipt from the Company of immediately available
funds by 11:00 a.m., New York City time (or such other time as may be agreed to
between the Company and the Paying Agent), directly to the Holder of such
Security (by Federal funds wire transfer or otherwise) if the Holder has
delivered written instructions to the Trustee 15 days prior to such payment date
requesting that such payment will be so made and designating the bank account to
which such payments shall be so made and in the case of payments of Principal
surrenders the same to the Trustee in exchange for a Security or Securities
aggregating the same principal amount as the unredeemed principal amount of the
Securities surrendered. The Trustee shall be entitled to rely on the last
instruction delivered by the Holder pursuant to this Section 4.1 unless a new
instruction is delivered 15 days prior to a payment date. The Company will
indemnify and hold each of the Trustee and any Paying Agent harmless against any
loss, liability or expense (including attorneys' fees) resulting from any act or
omission to act on the part of the Company or any such Holder in connection with
any such agreement or from making any payment in accordance with any such
agreement.
The Company shall pay interest on overdue Principal, and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
specified in the Securities.
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where Securities may be surrendered for registration of transfer or exchange or
for presentation for payment and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company hereby initially designates the Corporate Trust Office of the Trustee,
located in the Borough of Manhattan, The City of New York, as such office or
agency of the Company. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency.
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If at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 10.2.
The Company will maintain one or more agencies in a city or cities
located outside the United States (including any city in which such an agency is
required to be maintained under the rules of any stock exchange on which the
Securities of any series are listed) where the Unregistered Securities, if any,
of each series and coupons, if any, appertaining thereto may be presented for
payment. No payment on any Unregistered Security or coupon will be made upon
presentation of such Unregistered Security or coupon at an agency of the Company
within the United States nor will any payment be made by transfer to an account
in, or by mail to an address in, the United States unless, pursuant to
applicable United States laws and regulations then in effect, such payment can
be made without adverse tax consequences to the Company. Notwithstanding the
foregoing, if full payment in United States Dollars ("DOLLARS") at each agency
maintained by the Company outside the United States for payment on such
Unregistered Securities or coupons appertaining thereto is illegal or
effectively precluded by exchange controls or other similar restrictions,
payments in Dollars of Unregistered Securities of any series and coupons
appertaining thereto which are payable in Dollars may be made at an agency of
the Company maintained in the Borough of Manhattan, The City of New York.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; PROVIDED that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in
the Borough of Manhattan, The City of New York 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 CERTIFICATE TO TRUSTEE. The Company will furnish to
the Trustee annually, on or before a date not more than four months after the
end of its fiscal year (which, on the date hereof, is a calendar year), a brief
certificate (which need not contain the statements required by Section 10.4)
from its principal executive, financial or accounting officer as to his or her
knowledge of the compliance of the Company with all conditions and
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covenants under this Indenture (such compliance to be determined without regard
to any period of grace or requirement of notice provided under this Indenture)
which certificate shall comply with the requirements of the Trust Indenture Act.
SECTION 4.4 REPORTS BY THE COMPANY. The Company covenants to 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.
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 the covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 WHEN COMPANY MAY MERGE, ETC. The Company shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially as an entirety in one transaction or a series of
related transactions) to, any Person or permit any Person to merge with or into
the Company (subject to such exceptions as may be established pursuant to
Section 2.3 with respect to the Securities of all series then Outstanding)
unless:
(i) either (x) the Company shall be the continuing Person or (y) the
Person (if other than the Company) formed by such consolidation or into
which the Company is merged or that acquired or leased such property and
assets of the Company shall be a corporation organized and validly existing
under the laws of the United States of America or any jurisdiction thereof
and shall expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, all of the obligations of the Company on all of
the Securities and under this Indenture and the Company shall have
delivered to the Trustee an Opinion of Counsel stating that such
consolidation, merger or
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transfer and such supplemental indenture complies with this provision and
that all conditions precedent provided for herein relating to such
transaction have been complied with and that such supplemental indenture
constitutes the legal, valid and binding obligation of the Company or such
successor enforceable against such entity in accordance with its terms,
subject to customary exceptions;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) the Company delivers to the Trustee an Officers' Certificate
and Opinion of Counsel, in each case stating that such consolidation,
merger or transfer and such supplemental indenture complies with this
Section 5.1 and that all conditions precedent provided for herein relating
to such transaction have been complied with; and
(iv) such other conditions as may be established pursuant to Section
2.3 with respect to the Securities of any series then Outstanding.
SECTION 5.2 SUCCESSOR SUBSTITUTED. Upon any consolidation or
merger, or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 5.1 of this Indenture, the successor Person formed by such consolidation
or into which the Company is merged or to which such sale, conveyance, transfer,
lease or other disposition is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein.
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT. An "EVENT OF DEFAULT" shall occur
with respect to the Securities of any series if:
(a) the Company defaults in the payment of all or any part of the
Principal of any Security of such series when the same becomes due and
payable at maturity, upon acceleration, redemption or mandatory
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repurchase, including as a sinking fund installment, or otherwise;
(b) the Company defaults in the payment of any interest on any
Security of such series when the same becomes due and payable, and such
default continues for a period of 30 days;
(c) the Company defaults in the performance of or breaches any other
covenant or agreement of the Company in this Indenture with respect to any
Security of such series or in the Securities of such series and such
default or breach continues for a period of 30 consecutive days after
written notice thereof has been given to the Company by the Trustee or to
the Company and the Trustee by the Holders of 25% or more in aggregate
principal amount of the Securities of such series;
(d) there occurs with respect to any issue or issues of indebtedness
of the Company or any of its Subsidiaries having an outstanding principal
amount of $25,000,000 or more in the aggregate for all such issues of all
such persons, whether such indebtedness exists at the date of this
Indenture or shall hereafter be created (A) an event of default, as defined
in any such indebtedness, that has caused the holder thereof to declare
such indebtedness to be due and payable prior to its stated maturity and/or
(B) the failure to make a principal payment at final (but not any interim)
fixed maturity;
(e) any court, administrative panel, commission or similar entity
shall render any final judgment or order (not covered by insurance) for the
payment of money in excess of $10,000,000 in the aggregate for all such
final judgments or orders (treating any deductibles, self-insurance, or
retention as not so covered) against the Company or any of its Subsidiaries
and such judgment or order shall not be paid or discharged, and there shall
be any period of 60 consecutive days following entry of the final judgment
or order that causes the aggregate amount for all such final judgements or
orders outstanding and not paid or discharged against all such Persons to
exceed $10,000,000 during which a stay of enforcement of such final
judgment or order, by reason of a pending appeal or otherwise, shall not be
in effect;
(f) a court having jurisdiction in the premises enters a decree or
order for (A) relief in respect of
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the Company or any of its subsidiaries in an involuntary case under any
applicable bankruptcy, insolvency, or other similar law in effect as of the
date of the Indenture or hereafter in effect, (B) appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator, or
similar official of the Company or any of its Subsidiaries or for all or
substantially all of the property and assets of the Company or any of its
Subsidiaries or (C) the winding up or liquidation of the affairs of the
Company or any of its Subsidiaries and, in each case, such decree or order
shall remain unstayed and in effect for a period of 60 consecutive days;
(g) the Company or any of its Subsidiaries (A) commences a voluntary
case under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or consents to the entry of an order for relief in
an involuntary case under any such law, (B) consents to the appointment of
or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Company or any of its
Subsidiaries or for all or substantially all of the property and assets of
the Company or any of its Subsidiaries or (C) effects any general
assignment for the benefit of creditors;
(h) any other Event of Default established pursuant to Section 2.3
with respect to the Securities of such series occurs.
SECTION 6.2 ACCELERATION. (a) If an Event of Default (other than
an Event of Default specified in clause (f) or (g) of Section 6.1) occurs with
respect to the Securities of any series then outstanding occurs and is
continuing, then, and in each and every such case, except for any series of
Securities the Principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of any such affected series then outstanding hereunder
(each such series treated as a separate class) by notice in writing to the
Company (and to the Trustee if given by Securityholders), may, and the Trustee
at the request of such Holders shall, declare the entire principal amount of all
Securities of such affected series, and the interest accrued thereon, if any, to
be due and payable immediately, and upon any such declaration the same shall
become immediately due and payable.
(b) If an Event of Default described in clauses (f) or (g) of Section
6.1 occurs and is continuing, then the
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principal amount of all the Securities then outstanding and interest accrued
thereon, if any, shall be and become immediately due and payable, without any
notice or other action by any Holder or the Trustee, to the full extent
permitted by applicable law.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal amount of the Securities of any series (or
of all the Securities, as the case may be) shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Company shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of each such series (or of all
the Securities, as the case may be) and the Principal of any and all Securities
of each such series (or of all the Securities, as the case may be) which shall
have become due otherwise than by acceleration (with interest upon such
Principal and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest, at the same rate as the
rate of interest specified in the Securities of each such series to the date of
such payment or deposit) and such amount as shall be sufficient to cover all
amounts owing the Trustee under Section 7.7, and if any and all Events of
Default under the Indenture, other than the non-payment of the Principal of
Securities which shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein, then and in every such case the
Holders of a majority in aggregate principal amount of all the then outstanding
Securities of all such series that have been accelerated (voting as a single
class), by written notice to the Company and to the Trustee, may waive all
defaults with respect to all such series (or with respect to all the Securities,
as the case may be) and rescind and annul such declaration and its consequences,
but no such waiver or rescission and annulment shall extend to or shall affect
any subsequent default or shall impair any right consequent thereon.
SECTION 6.3 OTHER REMEDIES. If a payment default or an Event of
Default with respect to the Securities of any series occurs and is continuing,
the Trustee may pursue, in its own name or as trustee of an express trust, any
available remedy by proceeding at law or in equity to collect the payment of
Principal of and interest on the Securities of such series or to enforce the
performance of any provision of the Securities of such series or this Indenture.
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The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding.
SECTION 6.4 WAIVER OF PAST DEFAULTS. Subject to Sections 6.2, 6.7
and 9.2, the Holders of at least a majority in principal amount of the
outstanding Securities of any series affected (each series voting as a separate
class), by notice to the Trustee, may waive an existing Default or Event of
Default with respect to the Securities of such series and its consequences,
except a Default in the payment of Principal of or interest on any Security as
specified in clauses (a) or (b) of Section 6.1 or in respect of a covenant or
provision of this Indenture which cannot be modified or amended without the
consent of the Holder of each outstanding Security affected. Upon any such
waiver, such Default shall cease to exist, and any Event of Default with respect
to the Securities of such series arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereto.
SECTION 6.5 CONTROL BY MAJORITY. Subject to Sections 7.1 and
7.2(v), the Holders of at least a majority in aggregate principal amount of the
outstanding Securities of each series affected (each series voting as a separate
class) may direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred
on the Trustee with respect to the Securities of such series by this Indenture;
PROVIDED, that the Trustee may refuse to follow any direction that conflicts
with law or this Indenture, that may involve the Trustee in personal liability
or that the Trustee determines in good faith may be unduly prejudicial to the
rights of Holders not joining in the giving of such direction; and PROVIDED
FURTHER, that the Trustee may take any other action it deems proper that is not
inconsistent with any directions received from Holders of Securities pursuant to
this Section 6.5.
SECTION 6.6 LIMITATION ON SUITS. No Holder of any Security of any
series may institute any proceeding, judicial or otherwise, with respect to this
Indenture or the Securities of such series, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given to the Trustee written notice of
a continuing Event of Default with respect to the Securities of such
series;
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(ii) the Holders of at least 25% in aggregate principal amount of
outstanding Securities of all such series affected shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liabilities or
expenses to be incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(v) during such 60-day period, the Holders of a majority in aggregate
principal amount of the outstanding Securities of all such affected series
have not given the Trustee a direction that is inconsistent with such
written request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding
any other provision of this Indenture, the right of any Holder of a Security to
receive payment of Principal of or interest, if any, on such Holder's Security
on or after the respective due dates expressed on such Security, 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 such Holder.
SECTION 6.8 COLLECTION SUIT BY TRUSTEE. If an Event of Default
with respect to the Securities of any series in payment of Principal or interest
specified in clause (a) or (b) of Section 6.1 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 of, and accrued interest
remaining unpaid on, together with interest on overdue Principal of, and, to the
extent that payment of such interest is lawful, interest on overdue installments
of interest on, the Securities of such series, in each case at the rate
specified in such Securities, and such further amount as shall be sufficient to
cover all amounts owing the Trustee under Section 7.7.
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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 (including any claim for
amounts due the Trustee under Section 7.7) and the Holders allowed in any
judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any moneys, securities or other property payable or
deliverable upon conversion or exchange of the Securities or upon any such
claims and to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it
under Section 7.7. Nothing herein contained shall be deemed to empower the
Trustee to authorize or consent to, or accept or adopt on behalf of any Holder,
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10 APPLICATION OF PROCEEDS. Any moneys collected by the
Trustee pursuant to this Article in respect of the Securities of any series
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of Principal
or interest, upon presentation of the several Securities and coupons
appertaining to such Securities in respect of which moneys have been collected
and noting thereon the payment, or issuing Securities of such series and tenor
in reduced principal amounts in exchange for the presented Securities of such
series and tenor if only partially paid, or upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the Trustee under Section
7.7 applicable to the Securities of such series in respect of which moneys
have been collected;
SECOND: In case the Principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the
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Trustee) upon the overdue installments of interest at the same rate as the
rate of interest specified in such Securities, such payments to be made
ratably to the persons entitled thereto, without discrimination or
preference;
THIRD: In case the Principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for Principal and interest,
with interest upon the overdue Principal, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest specified in the
Securities of such series; and in case such moneys shall be insufficient to
pay in full the whole amount so due and unpaid upon the Securities of such
series, then to the payment of such Principal and interest, without
preference or priority of Principal over interest, or of interest over
Principal, or of any installment of interest over any other installment of
interest, or of any Security of such series over any other Security of such
series, ratably to the aggregate of such Principal and accrued and unpaid
interest; and
FOURTH: To the payment of the remainder, if any, to the Company or
any other person lawfully entitled thereto.
SECTION 6.11 RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then,
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored to their former positions
hereunder and thereafter all rights and remedies of the Company, Trustee and the
Holders shall continue as though no such proceeding had been instituted.
SECTION 6.12 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, in either
case in respect to the Securities of any series, a court may require any party
litigant in such suit (other than the Trustee) to file an undertaking to pay the
costs of the suit, and the court may assess reasonable costs, including
reasonable attorneys'
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fees and expenses, against any party litigant (other than the Trustee) in the
suit having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.12 does not apply to a suit by a
Holder pursuant to Section 6.7 or a suit by Holders of more than 10% in
principal amount of the outstanding Securities of such series.
SECTION 6.13 RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Securities in Section 2.8, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 6.14 DELAY OR OMISSION NOT WAIVER. No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article 6 or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
ARTICLE 7
TRUSTEE
SECTION 7.1 GENERAL. The duties and responsibilities of the
Trustee shall be as provided by the Trust Indenture Act and as set forth herein.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, unless it receives indemnity satisfactory to it
against any loss, liability or expense. Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
provisions of this Article 7.
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SECTION 7.2 CERTAIN RIGHTS OF TRUSTEE. Subject to Trust Indenture
Act Sections 315(a) through (d):
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any Officers' Certificate, Opinion of Counsel
(or both), resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper person or
persons. The Trustee need not investigate any fact or matter stated in the
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit;
(ii) before the Trustee acts or refrains from acting, it may require
an Officers' Certificate and/or an Opinion of Counsel, which shall conform
to Section 10.4. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on such certificate or opinion.
Subject to Sections 7.1 and 7.2, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering or
omitting to take any action hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may, in the absence
of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered
to the Trustee, and such certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted to be taken by it under the
provisions of this Indenture upon the faith thereof;
(iii) the Trustee may act through its attorneys and agents not
regularly in its employ and shall not be responsible for the misconduct or
negligence of any agent or attorney appointed with due care;
(iv) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any Board Resolution may be evidenced to the Trustee by a copy thereof
certified by the secretary or an assistant secretary of the Company;
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(v) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses
and liabilities that might be incurred by it in compliance with such
request, order or direction;
(vi) the Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within its
rights or powers or for any action it takes or omits to take in accordance
with the direction of the Holders in accordance with Section 6.5 relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture;
(vii) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted to be taken by it hereunder in good faith and in reliance thereon;
and
(viii) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, Officers' Certificate, Opinion of Counsel, Board
Resolution, statement, instrument, opinion, report, notice, request,
consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do
by the Holders of not less than a majority in aggregate principal amount of
the Securities of all series affected then outstanding; PROVIDED that, if
the payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee, in its
individual or any other capacity, may become
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the owner or pledgee of Securities and may otherwise deal with the Company or
its affiliates with the same rights it would have if it were not the Trustee.
Any Agent may do the same with like rights. However, the Trustee is subject to
Trust Indenture Act Sections 310(b) and 311. For purposes of Trust Indenture
Act Section 311(b)(4) and (6), the following terms shall mean:
(a) "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 and payable upon demand; and
(b) "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, manufacturing,
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 7.4 TRUSTEE'S DISCLAIMER. The recitals contained herein
and in the Securities (except the Trustee's certificate of authentication) shall
be taken as statements of the Company and not of the Trustee and the Trustee
assumes no responsibility for the correctness of the same. Neither the Trustee
nor any of its agents (i) makes any representation as to the validity or
adequacy of this Indenture or the Securities and (ii) shall be accountable for
the Company's use or application of the proceeds from the Securities.
SECTION 7.5 NOTICE OF DEFAULT. If any Default with respect to the
Securities of any series occurs and is continuing and if such Default is known
to the actual knowledge of a Responsible Officer with the corporate trust
department of the Trustee, the Trustee shall give to each Holder of Securities
of such series notice of such Default within 90 days after it occurs (i) if any
Unregistered Securities of such series are then outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper
in
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London and (ii) to all Holders of Securities of such series in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act, unless such
Default shall have been cured or waived before the mailing or publication of
such notice; PROVIDED, HOWEVER, that, except in the case of a Default in the
payment of the Principal of or interest on any Security, the Trustee shall be
protected in withholding such notice if the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after
each September 15, beginning with September 15, 1996, the Trustee shall mail to
each Holder as and to the extent provided in Trust Indenture Act Section 313(c)
a brief report dated as of such September 15, if required by Trust Indenture Act
Section 313(a).
SECTION 7.7 COMPENSATION AND INDEMNITY. The Company shall pay to
the Trustee such compensation as shall be agreed upon in writing from time to
time for its services. The compensation of the Trustee 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 out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee. Such expenses shall
include the reasonable compensation and expenses of the Trustee's agents,
counsel and other persons not regularly in its employ.
The Company shall indemnify the Trustee for, and hold it harmless
against, any and all loss, damage, claim or liability or expense including taxes
(other than taxes based on the income of the Trustee) incurred by it without
negligence or bad faith on its part arising out of or in connection with the
acceptance or administration of this Indenture and the Securities or the
issuance of the Securities or a series thereof or the trusts hereunder and the
performance of its duties under this Indenture and the Securities, including the
costs and expenses of defending itself against or investigating any claim or
liability and of complying with any process served upon it or any of its
officers in connection with the exercise or performance of any of its powers or
duties under this Indenture and the Securities.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, in its capacity as Trustee, except money or
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property held in trust to pay Principal of, and interest on particular
Securities.
The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture or the rejection or termination of
this Indenture under bankruptcy law. Such additional indebtedness shall be a
senior claim to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the Holders of particular Securities or coupons, and the Securities are hereby
subordinated to such senior claim. If the Trustee renders services and incurs
expenses following an Event of Default under Section 6.1(d) or Section 6.1(e)
hereof, the parties hereto and the Holders by their acceptance of the Securities
hereby agree that such expenses are intended to constitute expenses of
administration under any bankruptcy law.
SECTION 7.8 REPLACEMENT OF TRUSTEE. A resignation or removal of
the Trustee as Trustee with respect to the Securities of any series and
appointment of a successor Trustee as Trustee with respect to the Securities of
any series shall become effective only upon the successor Trustee's acceptance
of appointment as provided in this Section 7.8.
The Trustee may resign as Trustee with respect to the Securities of
any series at any time by so notifying the Company in writing. The Holders of a
majority in principal amount of the outstanding Securities of any series may
remove the Trustee as Trustee with respect to the Securities of such series by
so notifying the Trustee in writing and may appoint a successor Trustee with
respect thereto with the consent of the Company. The Company may remove the
Trustee as Trustee with respect to the Securities of any series if: (i) the
Trustee is no longer eligible under Section 7.10 of this Indenture; (ii) the
Trustee is adjudged a bankrupt or insolvent; (iii) a receiver or other public
officer takes charge of the Trustee or its property; or (iv) the Trustee becomes
incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to the
Securities of any series, or if a vacancy exists in the office of Trustee with
respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year
after the successor Trustee takes office,
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the Holders of a majority in principal amount of the outstanding Securities of
such series may appoint a successor Trustee in respect of such Securities to
replace the successor Trustee appointed by the Company. If the successor
Trustee with respect to the Securities of any series does not deliver its
written acceptance required by the next succeeding paragraph of this Section 7.8
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
outstanding Securities of such series may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect thereto.
A successor Trustee with respect to the Securities of any series shall
deliver a written acceptance of its appointment to the retiring Trustee and to
the Company. Immediately after the delivery of such written acceptance, subject
to the lien provided for in Section 7.7, (i) the retiring Trustee shall transfer
all property held by it as Trustee in respect of the Securities of such series
to the successor Trustee, (ii) the resignation or removal of the retiring
Trustee in respect of the Securities of such series shall become effective and
(iii) the successor Trustee shall have all the rights, powers and duties of the
Trustee in respect of the Securities of such series under this Indenture. A
successor Trustee shall mail notice of its succession to each Holder of
Securities of such series.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in the
preceding paragraph.
The Company shall give notice of any resignation and any removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee in respect of the Securities of such series to all Holders
of Securities of such series. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.8, the Company's obligations
under Section 7.7 shall continue for the benefit of the retiring Trustee.
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SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein; PROVIDED that such successor Trustee shall be otherwise qualified and
eligible under this Article 7.
SECTION 7.10 ELIGIBILITY. This Indenture shall always have a
Trustee who satisfies the requirements of Trust Indenture Act Section 310(a).
The Trustee shall have a combined capital and surplus of at least $25,000,000 as
set forth in its most recent published annual report of condition.
SECTION 7.11 MONEY HELD IN TRUST. 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 and except for
money held in trust under Article 8 of this Indenture.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 TERMINATION OF COMPANY'S OBLIGATIONS. Except as
otherwise provided in this Section 8.1, the Company may terminate its
obligations under the Securities of any Series and this Indenture with respect
to Securities of such series if:
(i) all Securities of such series previously authenticated and
delivered (other than destroyed, lost or stolen Securities of such series
that have been replaced or Securities of such series that are paid pursuant
to Section 4.1 or Securities of such series for whose payment money or
securities have theretofore been held in trust and thereafter repaid to the
Company, as provided in Section 8.5) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder; or
(ii) (A) the Securities of such series mature within one year or all
of them are to be called for redemption within one year under arrangements
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satisfactory to the Trustee for giving the notice of redemption, (B) the
Company irrevocably deposits in trust with the Trustee during such one-year
period, under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee, as trust funds solely for the
benefit of the Holders for that purpose, money or U.S. Government
Obligations 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 any
interest thereon, to pay Principal, premium, if any, and interest on the
Securities of such series to maturity or redemption, as the case may be,
and to pay all other sums payable by it hereunder, (C) no Default or Event
of Default with respect to the Securities of such series shall have
occurred and be continuing on the date of such deposit, (D) such deposit
will not result in a breach or violation of, or constitute a default under,
this Indenture or any other agreement or instrument to which the Company is
a party or by which it is bound and (E) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, in each case
stating that all conditions precedent provided for herein relating to the
satisfaction and discharge of this Indenture have been complied with.
With respect to the foregoing clause (i), only the Company's
obligations under Section 7.7 in respect of the Securities of such series shall
survive. With respect to the foregoing clause (ii), only the Company's
obligations in Sections 2.2 through 2.13, 4.1, 4.2, 7.7, 7.8 and 8.5 in respect
of the Securities of such series shall survive until such Securities of such
series are no longer outstanding. Thereafter, only the Company's obligations in
Sections 7.7 and 8.5 in respect of the Securities of such series shall survive.
After any such irrevocable deposit, the Trustee upon request shall acknowledge
in writing the discharge of the Company's obligations under the Securities of
such series and this Indenture with respect to the Securities of such series
except for those surviving obligations specified above.
SECTION 8.2 DEFEASANCE AND DISCHARGE OF INDENTURE. Except as
otherwise provided in this Section 8.2, the Company will be deemed to have paid
and will be discharged from any and all obligations in respect of the Securities
of any series on the 123rd day after the date of the deposit referred to in
clause (A) of this Section 8.2, and the provisions of this Indenture will no
longer be in
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effect with respect to the Securities of such series, and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the same,
PROVIDED that the following conditions shall have been satisfied:
(A) with reference to this Section 8.2, the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee (or
another trustee satisfying the requirements of Section 7.10 of this
Indenture) and conveyed all right, title and interest for the benefit of
the Holders of the Securities of such series, under the terms of an
irrevocable trust agreement in form and substance satisfactory to the
Trustee as trust funds in trust, specifically pledged to the Trustee for
the benefit of such Holders as security for payment of the Principal of,
premium, if any, and interest, if any, on the Securities of such series,
and dedicated solely to, the benefit of the Holders thereof, in and to (1)
money in an amount, (2) U.S. Government Obligations that, through the
payment of interest, premium, if any, and Principal in respect thereof in
accordance with their terms, will provide, not later than one day before
the due date of any payment referred to in this clause (A), money in an
amount or (3) a combination thereof in an amount sufficient, in the opinion
of a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge, without consideration of the reinvestment of such interest and
after payment of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, the Principal of,
premium, if any, and accrued interest on the outstanding Securities of such
series at the Stated Maturity of such Principal or interest; PROVIDED that
the Trustee shall have been irrevocably instructed to apply such money or
the proceeds of such U.S. Government Obligations to the payment of such
Principal, premium, if any, and interest with respect to the Securities of
such series;
(B) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(C) immediately after giving effect to such deposit on a pro forma
basis, no Event of Default, or event that after the giving of notice or
lapse of time or both would become an Event of Default, shall have occurred
and be continuing on the date of such deposit
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or during the period ending on the 123rd day after such date of deposit;
(D) the Company shall have delivered to the Trustee (i) either (x) an
Opinion of Counsel directed to the Trustee to the effect 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 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 option had not been exercised, which Opinion of
Counsel must be based up (and accompanied by a copy of) a ruling of the
Internal Revenue Service to the same effect unless there has been a change
in the applicable federal income tax law after the date of this Indenture
such that a ruling from the Internal Revenue Service is no longer required
or (y) a ruling directed to the Trustee received from the Internal Revenue
Service to the same effect as the Opinion of Counsel described in clause
(x) above and (ii) an Opinion of Counsel to the effect that (x) the
creation of the defeasance trust does not violate the Investment Company
Act of 1940 and (y) after the passage of 123 days following the deposit
(except, with respect to any trust funds for the account of any Holder who
may be deemed to be an "insider" for purposes of the United States
Bankruptcy Code, after one year following the deposit), the trust funds
will not be subject to the effect of Section 547 of the United States
Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law in a
case commenced by or against the Company under either such statute, and
either (I) the trust funds will no longer remain the property of the
Company (and therefore will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally) or (II) if a court were to rule under any such law in any
case or proceeding that the trust funds remained in the possession of the
Trustee prior to such court ruling to the extent not paid to the Holders,
the Trustee will hold, for the benefit of the Holders, a valid and
perfected security interest in such trust funds that is not avoidable in
bankruptcy or otherwise except for the effect of Section 552(b) of the
United States Bankruptcy Code on interest on the trust funds accruing after
the commencement of a case under such statute and (b) the Holders will be
entitled to receive adequate protection of their interests in such trust
funds if such trust funds are used in such case or proceeding;
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(E) if the Securities of such series are then listed on a national
securities exchange, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that such deposit, defeasance and
discharge will not cause the Securities of such series to be delisted; and
(F) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the defeasance contemplated by
this Section 8.2 have been complied with.
Notwithstanding the foregoing, prior to the end of the 123-day (or one
year) period referred to in clause (D)(2)(y) of this Section 8.2, none of the
Company's obligations under this Indenture with respect to Securities of such
series shall be discharged. Subsequent to the end of such 123-day (or one year)
period with respect to this Section 8.2, the Company's obligations in Sections
2.2 through 2.13, 4.1, 4.2, 7.7, 7.8 and 8.5 in respect of the Securities of
such series shall survive until the Securities of such series are no longer
outstanding. Thereafter, only the Company's obligations in Sections 7.7 and 8.5
shall survive. If and when a ruling from the Internal Revenue Service or an
Opinion of Counsel referred to in clause (D)(1) of this Section 8.2 is able to
be provided specifically without regard to, and not in reliance upon, the
continuance of the Company's obligations under Section 4.1, then the Company's
obligations under such Section 4.1 shall cease upon delivery to the Trustee of
such ruling or Opinion of Counsel and compliance with the other conditions
precedent provided for herein relating to the defeasance contemplated by this
Section 8.2.
After any such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities of such series and this Indenture with respect to Securities of such
series except for those surviving obligations in the immediately preceding
paragraph.
SECTION 8.3 DEFEASANCE OF CERTAIN OBLIGATIONS. The Company may
omit to comply with any term, provision or condition set forth in Section 4.3 or
any specific covenant relating to the Securities of any series provided for in a
Board Resolution or supplemental indenture pursuant to Section 2.3 which may by
its terms be defeased pursuant to this Section 8.3, and such omission shall be
deemed not to be an Event of Default under clauses (c) or (h) of Section
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6.1, in each case with respect to the outstanding Securities of such series if:
(i) with reference to this Section 8.3, the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee (or
another trustee satisfying the requirements of Section 7.10) and conveyed
all right, title and interest to the Trustee for the benefit of the Holders
of the Securities of such series, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee as trust funds
in trust, specifically pledged to the Trustee for the benefit of such
Holders as security for payment of the Principal of, premium, if any, and
interest, if any, on the Securities of such series, and dedicated solely
to, the benefit of such Holders, in and to (A) money in an amount, (B) U.S.
Government Obligations that, through the payment of interest and Principal
in respect thereof in accordance with their terms, will provide, not later
than one day before the due date of any payment referred to in this clause
(i), money in an amount or (C) a combination thereof in an amount
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, without consideration of the
reinvestment of such interest and after payment of all federal, state and
local taxes or other charges and assessments in respect thereof payable by
the Trustee, the Principal of, premium, if any, and interest on the
outstanding Securities of such series on the Stated Maturity of such
Principal or interest; PROVIDED that the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such U.S.
Government Obligations to the payment of such Principal, premium, if any,
and interest with respect to the Securities of such series;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(iii) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit;
(iv) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that (A) the creation of the defeasance trust does not violate
the Investment Company Act of 1940, (B) the Holders of the Securities
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<PAGE>
of such series have a valid first-priority security interest in the trust
funds, (C) the Holders of the Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such
deposit and defeasance of certain obligations and Events of Default 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 deposit
and defeasance had not occurred and (D) after the passage of 123 days
following the deposit (except, with respect to any trust funds for the
account of any Holder who may be deemed to be an "insider" for purposes of
the United States Bankruptcy Code, after one year following the deposit),
the trust funds will not be subject to the effect of Section 547 of the
United States Bankruptcy Code or Section 15 of the New York Debtor and
Creditor Law in a case commenced by or against the Company under either
such statute, and either (1) the trust funds will no longer remain the
property of the Company (and therefore will not be subject to the effect of
any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally) or (2) if a court were to rule under
any such law in any case or proceeding that the trust funds remained
property of the Company, (x) assuming such trust funds remained in the
possession of the Trustee prior to such court ruling to the extent not paid
to the Holders of the Securities of such series, the Trustee will hold, for
the benefit of the Holders of the Securities of such series, a valid and
perfected security interest in such trust funds that is not avoidable in
bankruptcy or otherwise (except for the effect of Section 552(b) of the
United States Bankruptcy Code on interest on the trust funds accruing after
the commencement of a case under such statute), (y) the Holders of the
Securities of such series will be entitled to receive adequate protection
of their interests in such trust funds if such trust funds are used in such
case or proceeding and (z) no property, rights in property or other
interests granted to the Trustee or the Holders of the Securities of such
series in exchange for, or with respect to, such trust funds will be
subject to any prior rights of holders of other Indebtedness of the Company
or any of its Subsidiaries;
(v) if the Securities of such series are then listed on a national
securities exchange, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that such deposit defeasance and
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discharge will not cause the Securities of such series to be delisted; and
(vi) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the defeasance contemplated by
this Section 8.3 have been complied with.
SECTION 8.4 APPLICATION OF TRUST MONEY. Subject to Section 8.5,
the Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.1, 8.2 or 8.3, as the case
may be, in respect of the Securities of any series and shall apply the deposited
money and the proceeds from deposited U.S. Government Obligations in accordance
with the Securities of such series and this Indenture to the payment of
Principal of and interest on the Securities of such series; but such money need
not be segregated from other funds except to the extent required by law. The
Company shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 8.1, 8.2 or 8.3 or the principal or interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of outstanding Securities.
SECTION 8.5 REPAYMENT TO COMPANY. Subject to Sections 7.7, 8.1,
8.2 and 8.3, the Trustee and the Paying Agent shall promptly pay to the Company
upon request set forth in an Officers' Certificate any money held by them at any
time and not required to make payments hereunder and thereupon shall be relieved
from all liability with respect to such money. The Trustee and the Paying Agent
shall pay to the Company upon written request any money held by them and
required to make payments hereunder under this Indenture that remains unclaimed
for two years; PROVIDED that the Trustee or such Paying Agent before being
required to make any payment may cause to be published at the expense of the
Company once in an Authorized Newspaper in The City of New York and once in an
Authorized Newspaper in London or mail to each Holder entitled to such money at
such Holder's address (as set forth in the Security Register) notice that such
money remains unclaimed and that after a date specified therein (which shall be
at least 30 days from the date of such publication or mailing) any unclaimed
balance of such money then remaining will be repaid to the Company. After
payment to the Company, Holders entitled to such money must look to the Company
for payment as general creditors unless
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an applicable law designates another Person, and all liability of the Trustee
and such Paying Agent with respect to such money shall cease.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 WITHOUT CONSENT OF HOLDERS. The Company and the
Trustee may amend or supplement this Indenture or the Securities of any series
without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this Indenture;
PROVIDED that such amendments or supplements shall not materially and
adversely affect the interests of the Holders;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the Trust Indenture Act;
(4) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by a
successor Trustee;
(5) to establish the form or forms or terms of Securities of any
series or of the coupons appertaining to such Securities as permitted by
Section 2.3;
(6) to provide for uncertificated or Unregistered Securities and to
make all appropriate changes for such purpose; or
(7) to make any change that does not materially and adversely affect
the rights of any Holder.
SECTION 9.2 WITH CONSENT OF HOLDERS. Subject to Sections 6.4 and
6.7, without prior notice to any Holders, the Company and the Trustee may amend
this Indenture and the Securities of any series with the written consent of the
Holders of a majority in principal amount of the outstanding Securities of all
series affected by such amendment (all such series voting as one class), and the
Holders of a majority in principal amount of the outstanding Securities of all
series affected thereby (all such series voting as one class) by written notice
to the Trustee may
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<PAGE>
waive future compliance by the Company with any provision of this Indenture or
the Securities of such series.
Notwithstanding the provisions of this Section 9.2, without the
consent of each Holder affected thereby, an amendment or waiver, including a
waiver pursuant to Section 6.4, may not:
(i) change the stated maturity of the Principal of, or any sinking
fund obligation or any installment of interest on, such Holder's Security,
(ii) reduce the Principal thereof or the rate of interest thereon, or
any premium payable with respect thereto,
(iii) change any place of payment where, or the currency in which, any
Security or any premium or the interest thereon is payable,
(iv) impair the right to institute suit for the enforcement of any
such payment on or after the due date therefor;
(v) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is required
for any such supplemental indenture, for any waiver of compliance with
certain provisions of this Indenture or certain Defaults and their
consequences provided for in this Indenture;
(vi) waive a Default in the payment of Principal of or interest on any
Security of such Holder;
(vii) adversely affect the rights of such Holder under any mandatory
redemption or repurchase provision or any right of redemption or repurchase
at the option of such Holder, or the amount thereof provable in bankruptcy,
or
(viii) modify any of the provisions of this Section 9.2, except to
increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Holder of each outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which
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<PAGE>
modifies the rights of Holders of Securities of such series with respect to such
covenant or provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series or of the coupons
appertaining to such Securities.
It shall not be necessary for the consent of any Holder under this
Section 9.2 to approve the particular form of any proposed amendment, supplement
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall give to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company will
mail supplemental indentures to Holders upon request. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.
SECTION 9.3 REVOCATION AND EFFECT OF CONSENT. Until an amendment
or waiver becomes effective, a consent to it by a Holder is a continuing consent
by the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the Security of the consenting Holder, even if
notation of the consent is not made on any Security. However, any such Holder
or subsequent Holder may revoke the consent as to its Security or portion of its
Security. Such revocation shall be effective only if the Trustee receives the
notice of revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver shall become effective with
respect to any Securities affected thereby on receipt by the Trustee of written
consents from the requisite Holders of outstanding Securities affected thereby.
The Company may, but shall not be obligated to, fix a record date
(which may be not less than 10 nor more than 60 days prior to the solicitation
of consents) for the purpose of determining the Holders of the Securities of any
series affected entitled to consent to any amendment, supplement or waiver. If
a record date is fixed, then, notwithstanding the immediately preceding
paragraph, those Persons who were such Holders at such record date (or their
duly designated proxies) and only those Persons shall be entitled to consent to
such amendment, supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be such Holders after such record
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<PAGE>
date. No such consent shall be valid or effective for more than 90 days after
such record date.
After an amendment, supplement or waiver becomes effective with
respect to the Securities of any series affected thereby, it shall bind every
Holder of such Securities unless it is of the type described in any of clauses
(i) through (iv) of Section 9.2. In case of an amendment or waiver of the type
described in clauses (i) through (iv) of Section 9.2, the amendment or waiver
shall bind each such Holder who has consented to it and every subsequent Holder
of a Security that evidences the same indebtedness as the Security of the
consenting Holder.
SECTION 9.4 NOTATION ON OR EXCHANGE OF SECURITIES. If an
amendment, supplement or waiver changes the terms of any Security, the Trustee
may require the Holder thereof to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Security about the changed terms and return
it to the Holder and the Trustee may place an appropriate notation on any
Security of such series thereafter authenticated. Alternatively, if the Company
or the Trustee so determines, the Company in exchange for the Security shall
issue and the Trustee shall authenticate a new Security of the same series and
tenor that reflects the changed terms.
SECTION 9.5 TRUSTEE TO SIGN AMENDMENTS, ETC. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article 9 is authorized or permitted by this
Indenture, stating that all requisite consents have been obtained or that no
consents are required and stating that such supplemental indenture constitutes
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to customary exceptions. Subject
to the preceding sentence, the Trustee shall sign such amendment, supplement or
waiver if the same does not adversely affect the rights of the Trustee. The
Trustee may, but shall not be obligated to, execute any such amendment,
supplement or waiver that affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
SECTION 9.6 CONFORMITY WITH TRUST INDENTURE ACT. Every
supplemental indenture executed pursuant to this Article 9 shall conform to the
requirements of the Trust Indenture Act as then in effect.
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ARTICLE 10
MISCELLANEOUS
SECTION 10.1 TRUST INDENTURE ACT OF 1939. This Indenture shall
incorporate and be governed by the provisions of the Trust Indenture Act that
are required to be part of and to govern indentures qualified under the Trust
Indenture Act.
SECTION 10.2 NOTICES. Any notice or communication shall be
sufficiently given if written and (a) if delivered in person, when received or
(b) if mailed by first class mail, 5 days after mailing, or (c) as between the
Company and the Trustee if sent by facsimile transmission, when transmission is
confirmed, in each case addressed as follows:
IF TO THE COMPANY:
Apple South, Inc.
Hancock at Washington
Madison, Georgia 30650
Telecopy: (706)
Attention: Treasurer
IF TO THE TRUSTEE:
SunTrust Bank, Atlanta
[Address]
[Address]
Telecopy: (404)
Attention: Corporate Trust Trustee
Administration
The Company or the Trustee by written notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication shall be sufficiently given to Holders of
any Unregistered Securities by publication at least once in an Authorized
Newspaper in The City of New York and at least once in an Authorized Newspaper
in London, and by mailing to the Holders thereof who have filed their names and
addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture
Act at such addresses as were so furnished to the Trustee and to Holders of
Registered Securities by mailing to such Holders at their addresses as they
shall appear on the Security Register. Notice mailed shall be sufficiently
given if so mailed within the time prescribed. Copies of any such
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<PAGE>
communication or notice to a Holder shall also be mailed to the Trustee and each
Agent at the same time.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. Except as
otherwise provided in this Indenture, if a notice or communication is mailed in
the manner provided in this Section 10.2, it is duly given, whether or not the
addressee receives it.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 10.3 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate stating 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
(ii) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.4 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:
(i) a statement that each person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statement or opinion contained in such
certificate or opinion is based;
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(iii) a statement that, in the opinion of each such person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(iv) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with; PROVIDED,
HOWEVER, that, with respect to matters of fact, an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 10.5 EVIDENCE OF OWNERSHIP. The Company, the Trustee and
any agent of the Company or the Trustee may deem and treat the Holder of any
Unregistered Security and the Holder of any coupon as the absolute owner of such
Unregistered Security or coupon (whether or not such Unregistered Security or
coupon shall be overdue) for the purpose of receiving payment thereof or on
account thereof and for all other purposes, and neither the Company, the
Trustee, nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary. The fact of the holding by any Holder of an
Unregistered Security, and the identifying number of such Security and the date
of his holding the same, may be proved by the production of such Security or by
a certificate executed by any trust company, bank, banker or recognized
securities dealer wherever situated satisfactory to the Trustee, if such
certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
bearing a specified identifying number was deposited with or exhibited to such
trust company, bank, banker or recognized securities dealer by the person named
in such certificate. Any such certificate may be issued in respect of one or
more Unregistered Securities specified therein. The holding by the person named
in any such certificate of any Unregistered Securities specified therein shall
be presumed to continue for a period of one year from the date of such
certificate unless at the time of any determination of such holding (1) another
certificate bearing a later date issued in respect of the same Securities shall
be produced or (2) the Security specified in such certificate shall be produced
by some other Person, or (3) the Security specified in such certificate shall
have ceased to be outstanding. Subject to Article 7, the fact and date of the
execution of any such instrument and the amount and numbers of Securities held
by the Person so executing such instrument may also be proven in accordance with
such reasonable rules and regulations as may be
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prescribed by the Trustee or in any other manner which the Trustee may deem
sufficient.
The Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the person in whose name any Registered Security shall be
registered upon the Security Register for such series as the absolute owner of
such Registered Security (whether or not such Registered Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the Principal of and,
subject to the provisions of this Indenture, interest on such Registered
Security and for all other purposes; and neither the Company nor the Trustee nor
any agent of the Company or the Trustee shall be affected by any notice to the
contrary.
SECTION 10.6 RULES BY TRUSTEE, PAYING AGENT OR REGISTRAR. The
Trustee may make reasonable rules for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 10.7 PAYMENT DATE OTHER THAN A BUSINESS DAY. If any date
for payment of Principal or interest on any Security shall not be a Business Day
at any place of payment, then payment of Principal of or interest on such
Security, as the case may be, need not be made on such date, but may be made on
the next succeeding Business Day at any place of payment with the same force and
effect as if made on such date and no interest shall accrue in respect of such
payment for the period from and after such date.
SECTION 10.8 GOVERNING LAW. The laws of the State of New York
(without regard to conflicts of laws principles thereof) shall govern this
Indenture and the Securities.
SECTION 10.9 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This
Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company or any Subsidiary of the Company. Any such indenture
or agreement may not be used to interpret this Indenture.
SECTION 10.10 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 10.11 DUPLICATE ORIGINALS. The parties may sign any number
of copies of this Indenture. Each
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signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 10.12 SEPARABILITY. 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 10.13 TABLE OF CONTENTS, HEADINGS, ETC. The Table of
Contents and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms and provisions
hereof.
SECTION 10.14 INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF
COMPANY EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture or any indenture
supplemental hereto, or in any Security or any coupons appertaining thereto, or
because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder,
officer, director or employee, as such, of the Company or of any successor,
either directly or through the Company or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
coupons appertaining thereto by the holders thereof and as part of the
consideration for the issue of the Securities and the coupons appertaining
thereto.
SECTION 10.15 JUDGMENT CURRENCY. The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the Principal of or interest on the Securities of any series
(the "REQUIRED CURRENCY") into a currency in which a judgment will be rendered
(the "JUDGMENT CURRENCY"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the day on
which final unappealable judgment is entered, unless such day is not a Business
Day in The City of New York, then, to the extent permitted by applicable law,
the rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of
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New York the Required Currency with the Judgment Currency on the Business Day in
The City of New York preceding the day on which final unappealable judgment is
entered and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
(SEAL) APPLE SOUTH, INC.
Attest: as the Company
- ----------------
By:
---------------------------
Name:
Title:
(SEAL) SUNTRUST BANK, ATLANTA,
Attest: as Trustee
- ----------------
By:
---------------------------
Name:
Title:
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STATE OF
-------- )
COUNTY OF )
-------- )
BEFORE ME, the undersigned authority, on this th day of May, 1996,
personally appeared [NAME], [TITLE] of Apple South, Inc., a Georgia corporation,
known to me (or proved to me by introduction upon the oath of a person known to
me) to be the person and officer whose name is subscribed to the foregoing
instrument, and acknowledged to me that he/she executed the same as the act of
such corporation for the purposes and consideration herein expressed and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS th DAY OF MAY, 1996.
(SEAL)
--------------------------------
NOTARY PUBLIC, STATE OF
--------
Print Name:
---------------------
Commission Expires:
-------------
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STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this day of May,
1996, personally appeared , of SunTrust Bank
Atlanta, a Georgia banking corporation, known to me (or proved to me by
introduction upon the oath of a person known to me) to be the person and officer
whose name is subscribed to the foregoing instrument, and acknowledged to me
that he/she executed the same as the act of such trust for the purposes and
consideration herein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS DAY OF MAY, 1996.
(SEAL)
--------------------------------
NOTARY PUBLIC, STATE OF NEW YORK
Print Name:
---------------------
Commission Expires:
-------------
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[FORM OF DEBT SECURITY]
CUSIP:
No. $
[To be included on Registered Global Securities only: Unless and until it is
exchanged in whole or in part for [Notes] [Debentures] in definitive registered
form, this [Note] [Debenture] may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary.]
APPLE SOUTH, INC.
% [NOTE]
[SINKING FUND DEBENTURE]
DUE
APPLE SOUTH, INC., a Georgia corporation (the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to , or registered
assigns, at the office or agency of the Company in New York, New York, the
principal sum of Dollars on , in the coin or currency of the
United States, and to pay interest, semi-annually on of each year,
commencing , on said principal sum at said office or agency, in like
coin or currency, at the rate per annum specified in the title of this [Note]
[Debenture], from the or the , as the case may be, next
preceding the date of this [Note] [Debenture] to which interest has been paid or
duly provided for, unless the date hereof is a date to which interest has been
paid or duly provided for, in which case from the date of this [Note]
[Debenture], or unless no interest has been paid or duly provided for on these
[Notes] [Debentures], in which case from , until payment of said
principal sum has been made or duly provided for; provided, that payment of
interest may be made at the option of the Company by check mailed to the address
of the person entitled thereto as such address shall appear on the Security
register or by wire transfer as provided in the Indenture.
Notwithstanding the foregoing, if the date hereof is after the th day of
or , as the case may be, and before the following
or , this [Note] [Debenture] shall bear interest from such
or ; PROVIDED, that if the Company shall default in the
payment of interest due on such or , then this [Note]
[Debenture] shall bear interest from the next preceding or
, to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for on these [Notes] [Debentures], from
. The interest so payable on any or will,
subject to certain exceptions provided in the Indenture referred to on the
reverse hereof, be paid to the person in whose name this [Note] [Debenture] is
registered at the close of business on the or , as the
case may be, next preceding such or , whether or not such
day is a Business Day.
Reference is made to the further provisions of this [Note] [Debenture] set forth
on the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
This [Note] [Debenture] shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually signed
by the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, APPLE SOUTH, INC. has caused this instrument to be signed
manually or by facsimile by its duly authorized officers and has caused a
facsimile of its corporate seal to be affixed hereunto or imprinted hereon.
<TABLE>
<S> <C>
(SEAL) APPLE SOUTH, INC.
Attest: By
</TABLE>
1
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
<TABLE>
<S> <C>
Dated: SUNTRUST BANK, ATLANTA, as Trustee
By
Authorized Signatory
</TABLE>
2
<PAGE>
REVERSE OF [NOTE] [DEBENTURE]
APPLE SOUTH, INC.
% [NOTE]
[SINKING FUND DEBENTURE]
DUE
This [Note] [Sinking Fund Debenture] is one of a duly authorized issue of
debentures, notes, bonds or other evidences of indebtedness of the Company
(hereinafter called the "Securities") of the series hereinafter specified, all
issued or to be issued under and pursuant to an indenture dated as of May 1,
1996 (herein called the "Indenture"), duly executed and delivered by the Company
to SunTrust Bank, Atlanta, as Trustee (herein called the "Trustee"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holders of the
Securities. The Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest (if any) at different rates, may be subject
to different redemption provisions (if any), may be subject to different
sinking, purchase or analogous funds (if any) and may otherwise vary as in the
Indenture provided. This [Note] [Debenture] is one of a series designated as the
% [Notes] [Sinking Fund Debentures] Due of the Company, limited in
aggregate principal amount to $ .
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue Principal and, to the extent
lawful, on overdue installments of interest at the rate PER ANNUM borne by this
[Note] [Debenture]. If a payment date is not a Business Day as defined in the
Indenture at a place of payment, payment may be made at that place on the next
succeeding day that is a Business Day, and no interest shall accrue for the
intervening period.
In case an Event of Default with respect to the % [Notes] [Sinking Fund
Debentures] Due , as defined in the Indenture, shall have occurred
and be continuing, the Principal hereof and the interest accrued hereon, if any,
may be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions which provide that, without prior notice to
any Holders, the Company and the Trustee may amend the Indenture and the
Securities of any series with the written consent of the Holders of a majority
in principal amount of the outstanding Securities of all series affected by such
amendment (all such series voting as one class), and the Holders of a majority
in principal amount of the outstanding Securities of all series affected thereby
(all such series voting as one class) by written notice to the Trustee may waive
future compliance by the Company with any provision of the Indenture or the
Securities of such series; PROVIDED that, without the consent of each Holder of
the Securities of each series affected thereby, an amendment or waiver,
including a waiver of past defaults, may not: (i) change the stated maturity of
the Principal of, or any sinking fund obligation or any installment of interest
on, such Holder's Security, or reduce the principal amount thereof or the rate
of interest thereon, or any premium payable under respect thereto, or change any
place of payment where, or the currency in which, any Security of such series or
any premium or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the due date therefor;
(ii) reduce the percentage in principal amount of outstanding Securities of the
relevant series the consent of whose Holders is required for any such
supplemental indenture, for any waiver of compliance with certain provisions of
the Indenture or certain Defaults and their consequences provided for in the
Indenture; (iii) waive a Default in the payment of Principal of or interest on
any Security of such Holder; (iv) adversely affect the rights of such Holder
under any mandatory redemption or repurchase provision or any right of
redemption or repurchase at the option of such Holder, or the amount thereof
provable in bankruptcy; or (v) modify any of the provisions of the Indenture
governing supplemental indentures with the consent of Securityholders except to
increase any such percentage or to provide that certain other provisions of the
Indenture cannot be modified or waived without the consent of the Holder of each
outstanding Security affected thereby.
It is also provided in the Indenture that, subject to certain conditions, the
Holders of at least a majority in principal amount (or, if any Securities are
Original Issue Discount Securities, such portion of the principal as is then
accelerable) of the outstanding Securities of all series affected (voting as a
single class), by notice to the Trustee, may waive an existing Default or Event
of Default with respect to the Securities of such series and its consequences,
except a Default in the
3
<PAGE>
payment of Principal of or interest on any Security or in respect of a covenant
or provision of the Indenture which cannot be modified or amended without the
consent of the Holder of each outstanding Security affected. Upon any such
waiver, such Default shall cease to exist, and any Event of Default with respect
to the Securities of such series arising therefrom shall be deemed to have been
cured, for every purpose of the Indenture; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereto.
The Indenture provides that a series of Securities may include one or more
tranches (each a "tranche") of Securities, including Securities issued in a
Periodic Offering. The Securities of different tranches may have one or more
different terms, including authentication dates and public offering prices, but
all the Securities within each such tranche shall have identical terms,
including authentication date and public offering price. Notwithstanding any
other provision of the Indenture, subject to certain exceptions, with respect to
sections of the Indenture concerning the execution, authentication and terms of
the Securities, redemption of the Securities, Events of Default of the
Securities, defeasance of the Securities and amendment of the Indenture, if any
series of Securities includes more than one tranche, all provisions of such
sections applicable to any series of Securities shall be deemed equally
applicable to each tranche of any series of Securities in the same manner as
though originally designated a series unless otherwise provided with respect to
such series or tranche pursuant to a board resolution or a supplemental
indenture establishing such series or tranche.
No reference herein to the Indenture and no provision of this [Note] [Debenture]
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the Principal of and any premium and
interest on this [Note] [Debenture] in the manner, at the place, at the
respective times, at the rate and in the coin or currency herein prescribed.
The [Notes] [Debentures] are issuable initially only in registered form without
coupons in denominations of [$1,000] or any integral multiple thereof at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, and in the manner and subject to the limitations provided in the
Indenture.
[This [Note] [Debenture] will not be redeemable at the option of the Company
prior to maturity.] [This [Note] [Debenture] is redeemable prior to maturity
...] [This Debenture is entitled to the benefits of a mandatory sinking fund as
follows ...]
Upon due presentment for registration of transfer of this [Note] [Debenture] at
the office or agency of the Company in the Borough of Manhattan, The City of New
York, a new [Note or Notes] [Debenture or Debentures] of authorized
denominations for an equal aggregate principal amount will be issued to the
transferee in exchange therefor, subject to the limitations provided in the
Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may deem
and treat the registered Holder hereof as the absolute owner of this [Note]
[Debenture] (whether or not this [Note] [Debenture] shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the Principal hereof and,
subject to the provisions hereof, interest hereon, and for all other purposes,
and neither the Company nor the Trustee nor any agent of the Company or the
Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement contained in the
Indenture or any indenture supplemental thereto or in any [Note] [Debenture], or
because of any indebtedness evidenced thereby, shall be had against any
incorporator as such, or against any past, present or future stockholder,
officer, director or employee, as such, of the Company or of any successor,
either directly or through the Company or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
Terms used herein which are defined in the Indenture shall have the respective
meanings assigned thereto in the Indenture.
The laws of the State of New York (without regard to conflicts of laws
principles thereof) shall govern this [Note] [Debenture].
4
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
________________________________________________________________________________
the within [Note] [Debenture] and all rights thereunder, hereby
________________________________________________________________________________
irrevocably constituting and appointing such person attorney
________________________________________________________________________________
to transfer such [Note] [Debenture] on the books of the Issuer, with full
________________________________________________________________________________
power of substitution in the premises.
Dated: _______________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within [Note] [Debenture] in every
particular without alteration or enlargement or any change whatsoever.
Signature guarantee: __________________________________
5
<PAGE>
KILPATRICK & CODY
1100 PEACHTREE STREET
SUITE 2800
ATLANTA, GEORGIA 30309-4530
May 3, 1996
404 815-6500
Apple South, Inc.
Hancock at Washington
Madison, Georgia 30650
Re: Registration Statement on Form S-3
File No. 333-02958
Ladies and Gentlemen:
We have acted as counsel for Apple South, Inc., a Georgia corporation
(the "Company"), in connection with the preparation and filing of a
registration statement on Form S-3, File No. 333-02958 (the "Registration
Statement"), with the Securities and Exchange Commission under the Securities
Act of 1933, as amended. The Registration Statement relates to the proposed
issuance and sale from time to time of up to an aggregate principal amount of
$200,000,000 of the Company's debt securities ("Debt Securities"). The Debt
Securities are to be issued by the Company from time to time under the terms
of an Indenture between the Company and SunTrust Bank, Atlanta, in the form
attached as an exhibit to the Registration Statement (the "Indenture").
Capitalized terms used by not defined herein shall have the meanings set
forth in the Registration Statement.
This letter is governed by, and shall be interpreted in accordance with,
the Legal Opinion Accord (the "Accord") of the American Bar Association
Section of Business Law (1991). As a consequence, it is subject to a number
of qualifications, exceptions, definitions, limitations on coverage and other
limitations, all as more particularly described in the Accord, and this
letter should be read in conjunction with the Accord. Nothwithstanding
anything in the Accord to the contrary, the Accord shall not be deemed to
limit or otherwise qualify any of the express qualifications, exceptions and
limitations that are set forth herein, each of which shall be cumulative of
the Accord.
<PAGE>
Apple South, Inc.
May 3, 1996
Page 2
In connection with this opinion, we have relied as to matters of fact,
without investigation, upon certificates of public officials and others and
upon affidavits, certificates and written statements of directors, officers
and employees of the Company. We have also examined originals or copies,
certified or otherwise identified to our satisfaction, of such instruments,
documents and records as we have deemed relevant and necessary to examine
for the purpose of this opinion, including (a) the Registration Statement,
(b) the Articles of Incorporation of the Company, (c) the By-laws, of the
Company, (d) the minutes of meetings of the Board of Directors of the
Company, (e) form of the Indenture for the Debt Securities, (f) Form T-1
Statement of Eligibility and Qualification under the Trust Indenture Act of
1939, of SunTrust Bank, Atlanta, relating to the Indenture, and (g) form of
the Debt Securities as included as an exhibit to the Registration Statement.
In connection with this opinion, we have assumed the accuracy and
completeness of all documents and records that we have reviewed, the
genuineness of all signatures, the due authority of the parties signing such
documents, the authenticity of the documents submitted to us as originals and
the conformity to authentic original documents of all documents submitted to
us as certified, conformed or reproduced copies.
The opinions set forth below are limited to the laws of the State of
Georgia and the federal laws of the United States of America. We are not
members of the state bar of New York, and we are not experts on the laws of
such state.
Further, we note that the Debt Securities are to be governed by the laws
of the State of New York. For purposes of this letter, we have assumed with
your consent that the Debt Securities will be governed by the laws of the
State of Georgia (without giving effect to its conflicts of laws principles).
We express no opinion on what laws will actually govern the Debt Securities.
Based upon and subject to the foregoing, it is our opinion that when the
Indenture has been duly executed and delivered by the Company and the Trustee
and when the Debt Securities have been duly executed and authenticated in
accordance with the provisions of the Indenture and delivered and paid for,
the Debt Securities will be legally issued and will be binding obligations of
the Company.
The General Qualifications apply to the opinions set forth above.
<PAGE>
Apple South, Inc.
May 3, 1996
Page 3
We hereby consent to the reference to our name in the Registration
Statement under the caption "Legal Matters" and further consent to the filing
of this opinion as an Exhibit to the Registration Statement.
Very truly yours,
KILPATRICK & CODY
By: /s/ LARRY D. LEDBETTER
--------------------------------
Larry D. Ledbetter, a Partner
<PAGE>
APPLE SOUTH, INC. AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
YEARS ENDED DECEMBER 31, 1995, 1994, 1993, 1992 AND 1991
(IN THOUSANDS EXCEPT PER SHARE AMOUNT)
<TABLE>
<CAPTION>
1ST QUARTER 1ST QUARTER
1991 1992 1993 1994 1995 1995 1996
--------- --------- --------- --------- --------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Earnings before income taxes................... $ 5,845 9,887 19,193 29,960 34,429 8,496 (8,587)
Amortization of capitalized interest........... 33 39 49 72 115 27 36
Interest expense............................... 2,824 2,193 2,205 3,184 6,284 1,294 1,978
Interest portion of rent expense (a)........... 2,349 2,518 2,969 3,413 4,486 969 1,295
--------- --------- --------- --------- --------- ----------- -----------
Earnings available for fixed charges......... $ 11,051 14,637 24,416 36,629 45,314 10,786 (5,278)
--------- --------- --------- --------- --------- ----------- -----------
--------- --------- --------- --------- --------- ----------- -----------
Fixed Charges:
Interest expense............................... $ 2,824 2,193 2,205 3,131 6,189 1,276 1,943
Capitalized interest........................... 47 185 218 673 1,074 203 97
Interest expense of 50% owned subsidiary....... 53 95 18 35
Interest portion of rent expense (a)........... 2,349 2,518 2,969 3,413 4,486 969 1,295
--------- --------- --------- --------- --------- ----------- -----------
Total fixed charges.......................... $ 5,220 4,896 5,392 7,270 11,844 2,466 3,370
--------- --------- --------- --------- --------- ----------- -----------
--------- --------- --------- --------- --------- ----------- -----------
Ratio of Earnings to Fixed Charges............. 2.12 2.99 4.53 5.04 3.83 4.37 (1.57)
--------- --------- --------- --------- --------- ----------- -----------
--------- --------- --------- --------- --------- ----------- -----------
</TABLE>
- ------------------------
(a) One-third of rent expense is the portion deemed representative of the
interest factor.
<PAGE>
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of a
Trustee Pursuant to Section 305(b)(2) ___
SUNTRUST BANK, ATLANTA
(Exact name of trustee as specified in its charter)
Georgia Banking Corporation 58-0466330
(Jurisdiction of incorporation or organization (I.R.S. employer
if not a U.S. national bank) identification no.)
25 Park Place, N.E.
Atlanta, Georgia 30303
(Address of principal executive offices) (Zip Code)
Bryan Echols
SunTrust Bank, Atlanta
58 Edgewood Ave., N.E.
Suite 400A
Atlanta, Georgia 30303
(404) 588-7813
(Name, address and telephone number of agent for service)
_________________________
Apple South, Inc.
(Exact name of obligor as specified in its charter)
Georgia 59-2778983
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Hancock at Washington
Madison, Georgia 30650
(Address of principal executive offices) (Zip Code)
_________________________
Debt Securities
(Title of the indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
(a) Name and address of each examining or supervising authority to which
it is subject.
Department of Banking and Finance
State of Georgia
Atlanta, Georgia
Federal Reserve Bank of Atlanta
104 Marietta Street, N.W.
Atlanta, Georgia
Federal Deposit Insurance Corporation
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
None.
Item 3. Voting Securities of the Trustee.
Not applicable.
Item 4. Trusteeships under Other Indentures.
Not applicable.
Item 5. Interlocking Directorates and Similar Relationships with the Obligor
or Underwriters.
Not applicable.
Item 6. Voting Securities of the Trustee Owned by the Obligor or its
Officials.
Not applicable.
<PAGE>
Item 7. Voting Securities of the Trustee Owned by Underwriters or their
Officials.
Not applicable.
Item 8. Securities of the Obligor Owned or Held by the Trustee.
Not applicable.
Item 9. Securities of Underwriters Owned or Held by the Trustee.
Not applicable.
Item 10. Ownership or Holdings by the Trustee of Voting Securities of Certain
Affiliates or Security Holders of the Obligor.
Not applicable.
Item 11. Ownership or Holdings by the Trustee of any Securities of a Person
Owning 50 Percent or More of the Voting Securities of the Obligor.
Not applicable.
Item 12. Indebtedness of the Obligor to the Trustee.
Not applicable.
Item 13. Defaults by the Obligor.
(a) Whether there is or has been a default with respect to the
securities under this indenture.
There is not and has not been any such default.
(b) If the trustee is a trustee under another indenture under which
any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding, or is trustee for more that one outstanding series
of securities under the indenture, state whether there has been a
default under any such indenture or series.
There has not been any such default.
Item 14. Affiliations with the Underwriters.
Not applicable.
-2-
<PAGE>
Item 15. Foreign Trustee.
Not applicable.
Item 16. List of Exhibits.
The additional exhibits listed below are filed herewith; exhibits, if any,
identified in parentheses are on file with the Commission and are incorporated
herein by reference as exhibits hereto pursuant to Rule 7a-29 under the Trust
Indenture Act of 1939, as amended, and Rule 24 of the Commission's Rules of
Practice.
Exhibit
Number
- -------
1 - A copy of the Articles of Amendment and Restated Articles of
Incorporation as now in effect. (Exhibit 1 to Form T-1, Registration
No. 33-63523.)
2 - A copy of the certificate of authority of the Trustee to commence
business. (Included in Exhibit 1.)
3 - A copy of the authorization of the Trustee to exercise trust powers.
(Included in Exhibit 1.)
4 - Bylaws of the Trustee. (Included in Exhibit 4 to Form T-1,
Registration No. 33-49283.)
5 - Not applicable.
6 - Consent of the Trustee required by Section 321(b) of the Trust
Indenture Act of 1939, as amended.
7 - Latest report of condition of the Trustee published pursuant to law or
the requirements of its supervising or examining authority as of the
close of business on December 31, 1995. (Exhibit 7 to Form T-1,
Registration No. 333-3170.)
8 - Not applicable.
9 - Not applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the Trustee, SunTrust Bank, Atlanta, a Georgia corporation, has duly
caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Atlanta and the State
of Georgia, on the 3rd day of May, 1996.
SUNTRUST BANK, ATLANTA
By: /s/ Bryan Echols
-------------------------
Bryan Echols
Vice President
-4-
<PAGE>
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of 1939, as amended, in connection with the proposed issue of Debt Securities by
Apple South, Inc., we hereby consent that reports of examination by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
SUNTRUST BANK, ATLANTA
By: /s/ Bryan Echols
----------------------------
Bryan Echols
Vice President
Dated: May 3, 1996
-5-
