<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 10, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
AGRIBIOTECH, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
---------------
NEVADA 85-0325742
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
120 CORPORATE PARK DRIVE
HENDERSON, NEVADA 89014
(702) 566-2440
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
DR. JOHNNY R. THOMAS, CHAIRMAN OF THE BOARD
AGRIBIOTECH, INC.
120 CORPORATE PARK DRIVE
HENDERSON, NEVADA 89014
(702)566-2440
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
ELLIOT H. LUTZKER, ESQ.
SNOW BECKER KRAUSS P.C.
605 THIRD AVENUE
NEW YORK, NEW YORK 10158
TEL: (212) 687-3860 FAX: (212) 949-7052
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 check the following box. [X]
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. [_]
---------------
EXPLANATORY NOTE
This Registration Statement on Form S-3 of AgriBioTech, Inc. is being filed
to register 4,287,291 shares of common stock (the "Common Stock") and
$143,750,000 principal amount of notes (the "Notes"). This Registration
Statement will be amended by two separate Prospectus Supplements. The first
Prospectus Supplement (the "Common Stock Prospectus Supplement") is presently
contemplated to include up to 4,500,000 shares of Common Stock (including
887,709 shares previously registered as described below) to be sold by the
Registrant in a public offering, which may or may not be underwritten, plus an
over-allotment option of 675,000 shares. The second Prospectus Supplement (the
"Debt Prospectus Supplement") is presently contemplated to consist of up to
$125,000,000 principal amount of Debt Securities to be sold in a public
offering, which may or may not be underwritten, plus an over-allotment option
of $18,750,000 of Debt Securities. Notwithstanding the foregoing, the
Registrant reserves the right to allocate between Debt Securities and Common
Stock under this Universal Shelf Registration at the time Prospectus
Supplements are filed.
The shares relating to footnotes (2) and (6) are included in the Common
Stock Prospectus.
The shares relating to footnotes (7) and (8) are included in the Debt
Prospectus.
---------------
Pursuant to Rule 429 under the Securities Act, the Prospectus included as
part of this Registration Statement shall be deemed to relate to 887,709
shares of Common Stock that were registered in the Registrant's Registration
Statement on Form S-3 (No. 333-47637), as last amended on August , 1998. Upon
effectiveness of this Registration Statement, the Registrant shall withdraw
such shares from such Registration Statement.
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<PAGE>
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER SHARE (1) OFFERING PRICE(1) REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value...... 887,709 Shs.(2) $ 13.4375(3) $ 11,928,590 $ 3,518.93(4)
Common Stock, $.001 par value...... 3,612,291 Shs.(2) $ 15.5625(5) $ 56,216,279 $16,583.80
Common Stock, $.001 par value...... 675,000 Shs.(6) $ 15.5625(5) $ 10,504,688 $ 3,098.88
Notes.............................. 125,000 Notes(7) $1,000.00 $125,000,000 $36,875.00
Debt Securities.................... 18,750 Notes(8) $1,000.00 $ 18,750,000 $ 5,531.25
Total.............................. $222,399,557 $65,607.87(9)
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</TABLE>
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 promulgated under the Securities Act of 1933, as
amended.
(2) Issuable pursuant to the Common Stock Prospectus by the Registrant in
registered original equity issuances.
(3) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) based upon the closing sale price of the common
stock of the Registrant on the Nasdaq National Market of $13 7/16 per
share on March 4, 1998.
(4) This amount was paid when the shares were first registered on March 10,
1998.
(5) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) based upon the closing sale price of the common
stock of the Registrant on the Nasdaq National Market of $15.5625 per
share on August 4, 1998.
(6) Issuable pursuant to the exercise of an over-allotment option that may be
granted to any underwriters of the equity issuances referred to in Note
(2).
(7) Issuable pursuant to the Debt Prospectus in a registered debt offering.
(8) Issuable pursuant to an over-allotment option that may be granted by the
Registrant to any underwriters of the debt offering referred to in
Note (7).
(9) Of this amount: (a) $3,518.93 was paid when an aggregate of 7,000,000
shares, including these 887,709 shares, were registered with the
Commission (as defined in the Common Stock Prospectus) on March 10, 1998,
as described in Note (4) above; and (b) $62,088.94 is being paid with this
Registration Statement.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933, as amended, (the "Securities Act")
or until the Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
-ii-
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, AUGUST 10, 1998
AGRIBIOTECH, INC.
PROSPECTUS
$125,000,000 OF DEBT SECURITIES AND
4,500,000 SHARES OF COMMON STOCK
-----------
This Prospectus relates to the public offering by AgriBioTech, Inc., a Nevada
corporation ("ABT" or the "Company"), of its unsecured debt securities which
may be issued from time to time in one or more series (the "Debt Securities")
and shares of its Common Stock, par value $0.001 per share (the "Common
Stock"). The Company reserves the right to allocate between Debt Securities and
Common Stock under this Universal Shelf Registration at the time supplements
are filed to this Prospectus (each, a "Prospectus Supplement"). The first
Prospectus Supplement (the "Common Stock Prospectus Supplement") is presently
contemplated to include up to 4,500,000 shares of Common Stock to be sold by
the Company. The second Prospectus Supplement (the "Debt Prospectus
Supplement") is presently contemplated to include up to $125,000,000 principal
amount of Debt Securities. This Prospectus also relates to options to purchase
up to 15% of the Debt Securities and/or Common Stock which may be granted to
any underwriters solely to cover over-allotments. The Debt Securities and the
Common Stock are collectively referred to herein as the "Securities."
In the case of Debt Securities, the specific title, the aggregate principal
amount, the purchase price, the maturity, the rate (or method of calculation)
and time of payment of interest, if any, the right of the Company, if any, to
defer payment of interest on the Debt Securities and the maximum length of such
deferral period, any redemption or sinking fund provisions, any conversion
provisions, any subordination terms, any covenants and any other specific term
of the Debt Securities will be set forth in a Prospectus Supplement. In the
case of Common Stock, the specific number of shares, the issuance price per
share, and whether the shares are issuable upon conversion of warrants, options
or other derivative securities will be set forth in a Prospectus Supplement.
The Prospectus Supplement will also disclose whether the Securities will be
listed on a national securities exchange and if they are not to be listed, the
possible effects thereof on their marketability. If so specified in the
Prospectus Supplement, Securities may be issued, in whole or in part, in book-
entry form. The Risk Factors applicable to any specific offering of the
Securities will be contained in the Prospectus Supplement.
Securities may be sold directly, through agents from time to time, through
underwriters and/or dealers or through a combination of such methods. If any
agent of the Company or any underwriter is involved in the sale of the
Securities, the name of such agent or underwriter and any applicable commission
or discount will be set forth in the Prospectus Supplement. See "Plan of
Distribution."
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
-----------
The Common Stock is traded on the Nasdaq under the symbol "ABTX." On August
7, 1998, the closing sale price of the Common Stock as reported on the Nasdaq
National Market was $20.06 per share.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------
THE DATE OF THIS PROSPECTUS IS AUGUST , 1998
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). In accordance with the
Exchange Act, the Company files reports and other information with the
Securities and Exchange Commission (the "Commission"). You may inspect and
copy reports, proxy statements and other information filed by the Company at
the public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549 and at the Commission's regional offices
located at the Northeast Regional Office, Seven World Trade Center, New York,
New York 10048, and at the Midwest Regional Office, 500 West Madison Street,
Chicago, Illinois 60611-2511. You may also obtain copies of such material at
prescribed rates, by writing to the Commission, Public Reference Room, 450
Fifth Street, N.W., Washington, D.C. 20549 or on the Commission's Worldwide
Web site at http://www.sec.gov.
The Company has filed with the Commission a Registration Statement on Form
S-3 (the "Registration Statement") under the Securities Act with respect to
the Securities offered hereby. This Prospectus, filed as part of the
Registration Statement, does not contain all the information set forth in the
Registration Statement and the exhibits thereto, certain portions of which
have been omitted as permitted by the rules and regulations of the Commission.
For further information with respect to the Company and the Securities, you
should refer to the Registration Statement and the exhibits thereto or
incorporated by reference therein. Information concerning the Company may be
found on the Company's Web site at http://www.agribiotech.com. You may inspect
the Registration Statement, including such exhibits, without charge at the
public reference facilities maintained by the Commission, at the Commission's
regional offices at the addresses stated above and on the Commission's Web
site. You may also obtain copies of these documents, at prescribed rates, by
writing to the Commission's Public Reference Room at the address set forth
above.
2
<PAGE>
INFORMATION INCORPORATED BY REFERENCE
The Company has filed the following documents with the Commission, all of
which are incorporated by reference into and made a part of this Prospectus:
(i) the Company's Annual Report on Form 10-KSB (as amended on October 24,
1997, February 17, 1998 and August , 1998) for the fiscal year ended June
30, 1997 ("Form 10-KSB");
(ii) the Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 1996 (as amended on July 12, 1996), September 30, 1997 (as
amended on February 17, 1998 and August , 1998), December 31, 1997 (as
amended on February 17, 1998 and August , 1998) and March 31, 1998 (as
amended on August , 1998) ("Forms 10-Q");
(iii) the Company's Current Reports on Form 8-K for October 30, 1996 (as
amended on January 13, 1997, February 17, 1998 and August , 1998), May
15, 1997 (as amended on July 29, 1997, February 17, 1998 and August ,
1998), June 18, 1997, August 22, 1997 (as amended on September 26, 1997,
February 17, 1998 and August , 1998), October 22, 1997, December 1, 1997,
January 6, 1998 (as amended on March 10, 1998, March 30, 1998 and August
, 1998), January 9, 1998 (as amended on March 10, 1998, March 30, 1998
and August , 1998), January 26, 1998 (as amended on March 30, 1998 and
August , 1998), March 31, 1998, April 8, 1998, May 22, 1998, June 23,
1998 and August , 1998 ("Forms 8-K");
(iv) the description of the Company's Common Stock, $.001 par value,
contained in the Company's Registration Statement on Form 8-A (File No. 0-
19352), filed July 11, 1995, pursuant to Section 12(g) of the Exchange Act
including any amendment or report filed for the purpose of updating such
information;
(v) the Company's Proxy Statement dated January 20, 1998 for its Annual
Meeting held on February 23, 1998; and
(vi) all documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Prospectus
and prior to the filing of a post-effective amendment that indicates that
all the securities offered hereby have been sold or that deregisters all
the securities remaining unsold.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein may be modified or superseded for purposes of
this Prospectus by a statement contained in this Prospectus or in any other
document that is filed after the date of this Prospectus that also is or is
deemed to be incorporated by reference herein. Any statement that is so
modified or superseded shall not be deemed to constitute a part of this
Prospectus, except as modified or superseded.
Copies of all documents that are incorporated by reference herein (not
including the exhibits to such documents, unless such exhibits are
specifically incorporated by reference into such documents or into this
Prospectus) will be provided without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon a written or oral
request to AgriBioTech, Inc., Attention: Secretary, 120 Corporate Park Drive,
Henderson, NV 89014; telephone number (702) 566-2440.
3
<PAGE>
THE COMPANY
ABT is the largest agricultural seed company in the United States that
specializes in developing, processing, packaging and distributing varieties of
forage and cool-season turfgrass seeds. Since January 1, 1995, the Company has
completed 29 acquisitions (the "Acquisitions") and has executed agreements to
acquire two additional companies (the "Pending Acquisitions"). The Company has
grown from net sales of $29,000 in fiscal 1994 to pro forma net sales of
approximately $407 million for the 12-month period ended June 30, 1997,
including completed Acquisitions and the Pending Acquisitions. The Company's
vertically integrated forage and cool-season turfgrass seed operations include
traditional genetic breeding and research and development programs, seed
processing plants that clean, condition and package seed grown under contract
for ABT, and national and international sales and distribution networks. The
Company's headquarters are located at 120 Corporate Park Drive, Nevada 89014;
telephone no. (702) 566-2440.
USE OF PROCEEDS
The primary purpose of this Offering is to provide the Company with
additional capital to fund its growth. The Company intends to use the net
proceeds of this Offering to repay any amount then outstanding under the
Company's Revolving Credit Facility. As of August 3, 1998, the Company had
borrowed approximately $52 million under the Revolving Credit Facility, which
matures on June 23, 2001 and is used primarily for working capital purposes.
The borrowings under the Revolving Credit Facility bear interest at a variable
rate of interest which averaged 8.68% per annum at August 3, 1998. The Company
has $100 million of borrowing availability, under the Revolving Credit
Facility, subject to a borrowing base computation and compliance with certain
financial covenants. The Company also intends to repay its $15 million of
borrowings under its Bridge Facility, if it has not been repaid, and which was
borrowed to fund certain acquisitions. Borrowings under the Bridge Facility
mature on January 4, 1999 and bear interest at a variable rate currently equal
to 9.125% per annum.
The Company will allocate a portion of the net proceeds to fund any Pending
Acquisitions. Approximately $15 million will be used by the Company to enhance
the Company's research and development efforts in the forage and turfgrass
sector. The Company may also use up to $4 million of the net proceeds to
improve and upgrade the Company's management information systems to
accommodate its rapid growth, and to also remediate computer issues associated
with the Year 2000. The balance, if any, of the net proceeds from this
Offering will be used for working capital purposes, including, but not limited
to, up to approximately $2 million to fund the construction of a proposed seed
cleaning facility in Wyoming.
Pending the Company's use of the net proceeds for each of the items
described above, other than repayment of indebtedness, the Company reserves
the right to reduce the balance due under the Company's Revolving Credit
Facility and then draw down upon such line of credit when it requires the
funds for the above uses or to invest any unused proceeds in short-term
marketable securities.
RATIO OF EARNINGS TO FIXED CHARGES
The Company's ratio of earnings to fixed charges was computed by dividing
earnings by fixed charges. For this purpose, earnings consist of earnings from
continuing operations, before income taxes and fixed charges of the Company
and its subsidiaries. Fixed charges consist of the Company's and its
subsidiaries' interest expense and the portion of rent expense representative
of an interest factor. For the years ended September 30, 1993 and 1994, the
nine months ended June 30, 1995, the years ended June 30, 1996 and 1997, and
the nine months ended March 31, 1997, earnings were inadequate to cover fixed
charges by approximately $0.2 million, $0.9 million, $1.4 million, $3.3
million, $2.7 million, and $1.2 million, respectively. The ratio of earnings
to fixed charges for the nine months ended March 31, 1998 was 1.4x.
4
<PAGE>
SELECTED FINANCIAL DATA
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
The selected financial data in the following table should be read in
conjunction with the Company's Financial Statements and the notes thereto,
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and other financial information incorporated by reference herein.
The historical selected financial data presented below under the captions
"Statement of Operations Data" and "Balance Sheet Data" for, and as of the end
of each of the years ended June 30, 1997 and 1996, the nine-month period ended
June 30, 1995, and each of the years ended September 30, 1994 and 1993 are
derived from the consolidated financial statements of ABT and subsidiaries,
which financial statements have been audited by KMPG Peat Marwick LLP,
independent certified public accountants. The consolidated financial
statements as of June 30, 1997 and 1996 and for the years then ended, and the
nine-month period ended June 30, 1995, and the report thereon, are
incorporated by reference in this Prospectus. The selected financial data
presented below for and as of the end of the nine month periods ended March
31, 1998 and 1997 are derived from the unaudited consolidated financial
statements of the Company incorporated by reference in this Prospectus. In the
opinion of the management, the unaudited consolidated financial statements for
the interim periods include all adjustments (consisting of normal recurring
accruals) necessary for a fair presentation of the results for such periods.
The results of operations for the nine month period ended March 31, 1998 are
not necessarily indicative of the results to be expected for the full year.
See "Management's Discussion and Analysis or Plan of Operations--Seasonality
of Business and Quarterly Comparisons" and "Business--Acquisition Program" in
the Company's Form 10-KSB for information that affects a comparison of the
Company's quarterly results of operations.
STATEMENT OF OPERATIONS DATA:
<TABLE>
<CAPTION>
NINE
NINE MONTHS YEARS ENDED MONTHS YEAR ENDED
ENDED MARCH 31, JUNE 30, ENDED SEPTEMBER 30,
----------------- ---------------- JUNE 30, --------------
1998 1997 1997 1996 1995(1) 1994 1993
-------- ------- ------- ------- -------- ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
Net sales............... $139,695 $41,165 $65,904 $25,962 $ 4,754 $ 29 $ 12
Cost of sales........... 109,209 31,006 49,527 19,236 3,398 12 3
-------- ------- ------- ------- ------- ------ ------
Gross profit............ 30,486 10,159 16,377 6,726 1,356 17 9
Operating expenses...... 27,442 10,814 17,972 9,637 2,779 915 171
-------- ------- ------- ------- ------- ------ ------
Earnings (loss) from
operations............. 3,044 (655) (1,595) (2,911) (1,423) (898) (162)
Total other income
(expense).............. (1,634) (534) (1,119) (413) 16 8 (30)
-------- ------- ------- ------- ------- ------ ------
Earnings (loss) before
income taxes........... 1,410 (1,189) (2,714) (3,324) (1,407) (890) (192)
Income tax expense
(benefit).............. (2,907) -- -- -- -- -- --
-------- ------- ------- ------- ------- ------ ------
Net earnings (loss)..... 4,317 (1,189) (2,714) (3,324) (1,407) (890) (192)
Discount and imputed
dividends on preferred
stock.................. 80 3,203 3,233 2,318 -- -- --
-------- ------- ------- ------- ------- ------ ------
Net earnings (loss)
attributable to common
stock.................. $ 4,237 $(4,392) $(5,947) $(5,642) $(1,407) $ (890) $ (192)
======== ======= ======= ======= ======= ====== ======
Shares of common stock
used in computing
(loss) per common share
(in thousands):
Basic.................. 28,044 13,301 15,549 7,459 5,485 3,911 1,205
Diluted................ 32,374 13,301 15,549 7,459 5,485 3,911 1,205
======== ======= ======= ======= ======= ====== ======
Net earnings (loss) per
common share:
Basic.................. $ 0.15 $ (0.33) $ (0.38) $ (0.76) $ (0.26) $(0.23) $(0.16)
Diluted................ $ 0.13 $ (0.33) $ (0.38) $ (0.76) $ (0.26) $(0.23) $(0.16)
======== ======= ======= ======= ======= ====== ======
</TABLE>
(Footnote on following page)
5
<PAGE>
BALANCE SHEET DATA:
<TABLE>
<CAPTION>
JUNE 30, SEPTEMBER 30,
MARCH 31, ----------------------- -------------
1998 1997 1996 1995(1) 1994 1993
--------- ------- ------- ------- ------ ------
<S> <C> <C> <C> <C> <C> <C>
Cash and cash equivalents..... $ 2,967 $ 2,554 $ 2,522 $1,423 $ 441 $ 14
Total assets.................. 258,770 95,113 26,184 8,014 765 309
Long-term obligations,
excluding current
installments................. 8,433 2,668 1,055 148 106 213
Total liabilities............. 107,880 50,125 12,161 1,681 261 384
Working capital............... 24,263 7,555 6,461 3,792 375 (158)
Stockholders' equity.......... 150,891 44,988 14,022 6,333 504 (75)
</TABLE>
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(1) The Company changed its fiscal year end to June 30th effective in 1995.
6
<PAGE>
DESCRIPTION OF DEBT SECURITIES
GENERAL
The Debt Securities will be issued under an Indenture (the "Indenture")
between the Company and the trustee named in the applicable Prospectus
Supplement as trustee (the "Trustee"). The statements under this caption are
brief summaries of certain provisions contained in the Indenture, do not
purport to be complete and are qualified in their entirety by reference to the
Indenture, a copy of which will be filed as an exhibit to and incorporated in
the Registration Statement. Terms used but not defined under this caption have
the meanings given to them in the Indenture.
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of any Debt Securities
and the extent, if any, to which such general provisions do not apply to such
Debt Securities will be described in the Prospectus Supplement relating to
such Debt Securities.
The Indenture does not limit the amount of Debt Securities that may be
issued thereunder, and the Indenture provides that Debt Securities of any
series may be issued thereunder up to the aggregate principal amount which may
be authorized from time to time by the Company's board of directors ("Board of
Directors").
Debt Securities of a series may be issuable in registered form with or
without coupons ("Registered Securities"), in bearer form with or without
coupons attached ("Bearer Securities") or in the form of one or more global
securities in registered or bearer form (each a "Global Security"). Bearer
Securities, if any, will be offered only to non-United States persons and to
offices located outside the United States of certain United States financial
institutions. Reference is made to the Prospectus Supplement for a description
of the following terms, where applicable, of each series of Debt Securities in
respect of which this Prospectus is being delivered: (1) the title of such
Debt Securities; (2) the limit, if any, on the aggregate principal amount or
aggregate initial public offering price of such Debt Securities; (3) the
priority of payment of such Debt Securities; (4) the price or prices (which
may be expressed as a percentage of the aggregate principal amount thereof) at
which the Debt Securities will be issued; (5) the date or dates on which the
principal of the Debt Securities will be payable; (6) the rate or rates (which
may be fixed or variable) per annum at which such Debt Securities will bear
interest, if any, or the method of determining the same; (7) the date or dates
from which such interest, if any, on the Debt Securities will accrue, the date
or dates on which such interest, if any, will be payable, the date or dates on
which payment of such interest, if any, will commence and the date, if any,
specified in the Debt Security as the "Regular Record Date" for such interest
payment dates; (8) the extent to which any of the Debt Securities will be
issuable in temporary or permanent global form, and the manner in which any
interest payable on a temporary or permanent global Debt Security will be
paid; (9) each office or agency where, subject to the terms of the applicable
Indenture, the Debt Securities may be presented for registration of transfer
or exchange; (10) the place or places where the principal of (and premium, if
any) and interest, if any, on the Debt Securities will be payable; (11) the
date or dates, if any, after which such Debt Securities may be redeemed or
purchased in whole or in part, at the option of the Company, or may be
required to be purchased or redeemed at the option of the holder, and the
redemption or repayment price or prices thereof; (12) the denomination or
denominations in which such Debt Securities are authorized to be issued; (13)
any index used to determine the amount of payments of principal of, premium,
if any, and interest on the Debt Securities; (14) whether any of the Debt
Securities are to be issuable as Bearer Securities and/or Registered
Securities, and if issuable as Bearer Securities, any limitations on issuance
of such Bearer Securities and any provisions regarding the transfer or
exchange of such Bearer Securities (including exchange for registered Debt
Securities of the same series); (15) the payment of any additional amounts
with respect to the Debt Securities; (16) information with respect to book-
entry procedures not currently set forth in the Indenture; (17) any additional
covenants or Events of Default not currently set forth in the Indenture; (18)
whether any of the Debt Securities will be convertible or exchangeable into
debt or equity securities and, if so, the terms and conditions upon which such
conversion or exchange will be effected; (19) whether and how any Subsidiary
of the Company may be designated a Restricted or Unrestricted Subsidiary; (20)
the extent to which any of the Debt Securities will be secured obligations of
the Company; (21) whether payment of any of the Debt Securities will be
guaranteed by the Company's subsidiaries, and (22) any other terms of such
Debt Securities.
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EVENTS OF DEFAULT, WAIVERS, ETC.
An Event of Default with respect to Debt Securities of any series is defined
in the Indenture as (i) default in the payment of the principal of or premium,
if any, on any Debt Security of such series when due, (ii) default in the
payment of interest upon any Debt Security of such series when due and the
continuance of such default for a period of 30 days, (iii) default in the
observance or performance of any other covenant or agreement of the Company or
any Guarantor in the Debt Securities of such series or the Indenture and
continuance of such default for 60 days after written notice, (iv) certain
events of bankruptcy, insolvency or reorganization of the Company or any
Guarantor or (v) any other Event of Default provided with respect to Debt
Securities of any series.
If any Event of Default (other than certain events of bankruptcy, insolvency
or reorganization) with respect to any series of Debt Securities for which
there are Debt Securities outstanding under the Indenture occurs and is
continuing, either the applicable Trustee or the holders of not less than 25%
in aggregate principal amount of the Debt Securities of such series may
declare the principal amount of all Debt Securities of that series to be
immediately due and payable. If any Event of Default arising from certain
events of bankruptcy, insolvency or reorganization of the Company or any
Guarantor occurs, the principal amount of all Debt Securities of that series
shall be ipso facto immediately due and payable. The holders of a majority in
aggregate principal amount of the Debt Securities of any series outstanding
under the Indenture may waive the consequences of an Event of Default
resulting in acceleration of such Debt Securities, but only if all Events of
Default have been remedied and all payments due (other than those due as a
result of acceleration) have been made. If an Event of Default occurs and is
continuing, the Trustee may in its discretion, or at the written request of
holders of not less than a majority in aggregate principal amount of the Debt
Securities of any series outstanding under the Indenture and upon reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request and subject to certain other conditions set forth
in the Indenture, proceed to protect the rights of the holders of all the Debt
Securities of such series. If the Trustee fails within 60 days after its
receipt of such a written request and offer of indemnity to institute any such
proceeding, any holder of a Debt Security who has previously given notice to
the Trustee of a continuing Event of Default may institute such a proceeding.
The holders of a majority in aggregate principal amount of Debt Securities of
any series outstanding under the Indenture may waive any past default under
the Indenture with respect to such series except a default in the payment of
principal of, premium, if any, or interest on the Debt Securities of such
series and except for the waiver of a covenant or provision that, pursuant to
the Indenture, cannot be modified or amended without the consent of holders of
all such Debt Securities then outstanding.
The Indenture provides that in the event of an Event of Default specified in
clause (i) or (ii) of the first paragraph under "Events of Default, Waivers,
Etc.," the Company will, upon demand of the applicable Trustee, pay to it, for
the benefit of the holder of any such Debt Security, the whole amount then due
and payable on such Debt Security for principal, premium, if any, and
interest. The Indenture further provides that if the Company fails to pay such
amount forthwith upon such demand, the applicable Trustee may, among other
things, institute a judicial proceeding for the collection thereof.
The Indenture also provide that notwithstanding any other provision of the
Indenture, each holder of any Debt Security of any series will have the right
to institute suit for the enforcement of any payment of principal of, premium,
if any, and interest on such Debt Security when due and that such right may
not be impaired without the consent of such holder.
The Company is required to file annually with the Trustee a written
statement of officers as to the existence or non-existence of defaults under
the Indenture or the Debt Securities.
GUARANTEE
The Indenture provides that one or more guarantors (the "Guarantors") may
guaranty the performance and punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all obligations of the Company
under the Debt Securities of any series and the Indenture (a "Guarantee"). The
liability of any Guarantor under a Guarantee is independent of and not in
consideration of or contingent upon the liability of the Company or any other
party obligated under the Debt Securities or the Indenture, and a separate
action or actions may be brought or prosecuted against any such Guarantor,
whether or not any action is brought or prosecuted against the Company or any
other party obligated under the Debt Securities or the Indenture or whether
the
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Company or any other party obligated under the Debt Securities or the
Indenture is joined in any such action or actions. Such Guarantee, however,
will be limited to an amount not to exceed the maximum amount that can be
Guaranteed by such Guarantor without rendering the Guarantee, as it relates to
such Guarantor, voidable under Section 548 of the Federal Bankruptcy Code or
any applicable provisions of comparable state law.
The Guarantee of any Guarantor is a continuing guaranty and will remain in
full force and effect until payment in full of all of the guaranteed
obligations.
REGISTRATION AND TRANSFER
Unless otherwise indicated in the applicable Prospectus Supplement, Debt
Securities will be issued only as Registered Securities. If Bearer Securities
are issued, the United States Federal income tax consequences and other
special considerations, procedures and limitations applicable to such Bearer
Securities will be described in the Prospectus Supplement relating thereto.
Unless otherwise indicated in the applicable Prospectus Supplement, Debt
Securities issued as Registered Securities will be without coupons. Debt
Securities issued as Bearer Securities will have interest coupons attached,
unless issued as zero coupon securities.
Registered Securities (other than a Global Security) may be presented for
transfer (with the form of transfer endorsed thereon duly executed) or
exchanged for other Debt Securities of the same series at the office of the
security registrar appointed by the Company (the "Security Registrar")
specified according to the terms of the applicable Indenture. The Company has
agreed in the Indenture that, with respect to Registered Securities having the
City of New York as a place of payment, the Company will appoint a Security
Registrar or a co-security registrar, as may be appropriate (the "Co-Security
Registrar"), located in the City of New York for such transfer or exchange.
Unless otherwise provided in the applicable Prospectus Supplement, such
transfer or exchange shall be made without service charge, but the Company may
require payment of any taxes or other governmental charges as described in the
applicable Indenture. Provisions relating to the exchange of Bearer Securities
for other Debt Securities of the same series (including, if applicable,
Registered Securities) will be described in the applicable Prospectus
Supplement. In no event, however, will Registered Securities be exchangeable
for Bearer Securities.
GLOBAL SECURITIES
Debt Securities of a series may be issued in whole or in part in the form of
one or more Global Securities that will be deposited with, or on behalf of, a
depositary (the "Depositary") identified in the Prospectus Supplement relating
to such series. Global Securities may be issued in either registered or bearer
form and in either temporary or permanent form. Unless and until it is
exchanged in whole or in part for the individual Debt Securities represented
thereby, a Global Security may not be transferred except as a whole by the
Depositary for such Global Security to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by the Depositary or any nominee to a successor Depositary or
any nominee of such successor.
The specific terms of the depositary arrangement with respect to a series of
Debt Securities and certain limitations and restrictions relating to a series
of Debt Securities in the form of one or more Global Securities will be
described in the Prospectus Supplement relating to such series. The Company
anticipates that the following provisions will generally apply to depositary
arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security or its nominee will credit, on its book-entry registration and
transfer system, the respective principal amounts of the individual Debt
Securities represented by such Global Security to the accounts of persons that
have accounts with such Depositary. Such accounts shall be designated by the
underwriters or agents with respect to such Debt Securities. Ownership of
beneficial interests in a Global Security will be limited to persons that have
accounts with the applicable Depositary ("participants") or persons that may
hold interests through participants. Ownership of
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beneficial interests in such Global Security will be shown on, and the
transfer of that ownership will be effected only through, records maintained
by the applicable Depositary or its nominee (with respect to interests of
participants) and the records of participants (with respect to interests of
persons other than participants). The laws of some states require that certain
purchasers of securities take physical delivery of such securities in
definitive form. Such limits and such laws may impair the ability to transfer
beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture governing such Debt Securities. Except as provided below, owners of
beneficial interests in a Global Security will not be entitled to have any of
the individual Debt Securities of the series represented by such Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of any such Debt Securities of such series in definitive
form and will not be considered the owners or holders thereof under the
Indenture governing such Debt Securities.
Payments of principal of, premium, if any, and interest on individual Debt
Securities represented by a Global Security registered in the name of a
Depositary or its nominee will be made to the Depositary or its nominee, as
the case may be, as the registered owner of the Global Security representing
such Debt Securities. None of the Company, the Trustee for such Debt
Securities, any person authorized by the Company to pay the principal of,
premium, if any, or interest on any Debt Securities or any coupons
appertaining thereto on behalf of the Company ("Paying Agent"), and the
Security Registrar for such Debt Securities will have any responsibility or
liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests of the Global Security for such Debt
Securities or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
Subject to certain restrictions relating to Bearer Securities, the Company
expects that the Depositary for a series of Debt Securities or its nominee,
upon receipt of any payment of principal, premium or interest in respect of a
permanent Global Security representing any of such Debt Securities, will
credit participants' accounts immediately with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of such Global Security for such Debt Securities as shown on the records of
such Depositary or its nominee. The Company also expects that payments by
participants to owners of beneficial interests in such 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 in bearer form or registered in "street name." Such payments will
be the responsibility of such participants. With respect to owners of
beneficial interests in a temporary Global Security representing Bearer
Securities, receipt by such beneficial owners of payments of principal,
premium or interest in respect thereof will be subject to additional
restrictions.
If the Depositary for a series of Debt Securities is at any time unwilling,
unable or ineligible to continue as depositary and a successor depositary is
not appointed by the Company within 90 days, the Company will issue individual
Debt Securities of such series in definitive form in exchange for the Global
Security representing such series of Debt Securities. In addition, the Company
may at any time and in its sole discretion, subject to any limitations
described in the Prospectus Supplement relating to such Debt Securities,
determine not to have any Debt Securities of a series represented by one or
more Global Securities and, in such event, will issue individual Debt
Securities of such series in definitive form in exchange for the Global
Security or Securities representing such series of Debt Securities. Further,
if the Company so specifies with respect to the Debt Securities of a series,
an owner of a beneficial interest in a Global Security representing Debt
Securities of such series may, on terms acceptable to the Company, the Trustee
and the Depositary for such Global Security, receive Debt Securities of such
series in definitive form in exchange for such beneficial interests, subject
to any limitations described in the Prospectus Supplement relating to such
Debt Securities. In any such instance, an owner of a beneficial interest in a
Global Security will be entitled to physical delivery in definitive form of
Debt Securities of the series represented by such Global Security equal in
principal amount to such beneficial interest and to have such Debt Securities
registered in its name (if the Debt Securities of such series are issuable as
Registered Securities). Debt Securities of such series so issued in definitive
form will be issued (i) as Registered Securities in denominations,
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unless otherwise specified by the Company, of $1,000 and integral multiples
thereof if the Debt Securities of such series are issuable as Registered
Securities, (ii) as Bearer Securities in the denomination, unless otherwise
specified by the Company, of $5,000 if the Debt Securities of such series are
issuable as Bearer Securities or (iii) as either Registered or Bearer
Securities, if the Debt Securities of such series are issuable in either form.
Certain restrictions may apply, however, on the issuance of a Bearer Security
in definitive form in exchange for an interest in a Global Security.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and premium, if any, on Registered Securities will be made at
the office of such Paying Agent or Paying Agents as the Company may designate
from time to time. At the option of the Company, payment of any interest may
be made by check mailed or electronic funds transfer to the address of the
person entitled thereto as such address shall appear in the applicable
security register kept by the Company ("Security Register"). Unless otherwise
indicated in an applicable Prospectus Supplement, payment of any installment
of interest on Registered Securities will be made to the person in whose name
such Debt Security is registered at the close of business on the Regular
Record Date for such payment.
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of, premium, if any, and any interest on Bearer Securities will
be payable, subject to any applicable laws and regulations, at the offices of
such Paying Agents outside the United States as the Company may designate from
time to time or, at the option of the holder, by check mailed to any address
outside the United States or by transfer to an account maintained by the payee
with a bank located outside the United States. Unless otherwise indicated in
an applicable Prospectus Supplement, payment of interest on Bearer Securities
will be made only against surrender of the coupon relating to such interest
payment date. No payment with respect to any Bearer Security will be made at
any office or agency of the Company in the United States or by check mailed to
any address in the United States or by transfer to an account maintained with
a bank located in the United States.
CONSOLIDATION, MERGER OR SALE OF ASSETS
The Indenture provides that neither the Company nor any Guarantor may,
without the consent of the holders of the Debt Securities outstanding under
the Indenture, consolidate with, merge into or transfer all or substantially
all of the property and assets of any division or line of business to any
single person, unless (i) any such successor assumes the Company's or such
Guarantor's obligations on the applicable Debt Securities and under the
Indenture, (ii) after giving effect thereto, no Event of Default shall have
happened and be continuing and (iii) the Company has delivered to the Trustee
an officers' certificate and an opinion of counsel each stating that such
consolidation, merger, conveyance or transfer and the supplemental indenture
pursuant to which the successor assumes the Company's or such Guarantor's
obligations on the applicable Debt Securities comply with Article 10 of the
Indenture and that all conditions precedent therein provided for relating to
such transaction have been complied with. Accordingly, unless otherwise
specified in an applicable Prospectus Supplement, any such consolidation,
merger or transfer of assets substantially as an entirety that meets the
conditions described above would not create any Event of Default which would
entitle holders of the Debt Securities, or the Trustee on their behalf, to
take any of the actions described above under "Events of Default, Waivers,
Etc." Additionally, upon any such consolidation or merger, or any such
conveyance or transfer of the properties and assets of the Company or any
Guarantor substantially as an entirety, the successor person formed by such
consolidation or into which the Company or such Guarantor is merged or to
which such conveyance or transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company or such Guarantor
under the Indenture with the same effect as if such successor person had been
named as the Company or such Guarantor. In the event of any such conveyance or
transfer, the Company as the predecessor corporation and such Guarantor shall
be relieved of all obligations and covenants under the Indenture and may be
dissolved, wound up and liquidated at any time thereafter.
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LEVERAGED AND OTHER TRANSACTIONS
The Indenture contains no provisions which would afford holders of the Debt
Securities protection in the event of a highly leveraged or other transaction
involving the Company which could adversely affect the holders of Debt
Securities. Provisions, if any, applicable to any such transaction will be
described in an applicable Prospectus Supplement.
MODIFICATION OF THE INDENTURE; WAIVER OF COVENANTS
The Indenture provides that, with the consent of the holders of not less
than a majority in aggregate principal amount of the outstanding Debt
Securities of each affected series, modifications and alterations of the
Indenture may be made which affect the rights of the holders of such Debt
Securities, except that no such modification or alteration may be made without
the consent of the holder of each Debt Security so affected which would, among
other things, (i) change the maturity of the principal of, or of any
installment of interest (or premium, if any) on, any Debt Security issued
pursuant to the Indenture, or reduce the principal amount thereof or any
premium thereon or the rate of interest thereon, or change the method of
calculation of interest or the currency of payment of principal or interest
(or premium, if any) on, or reduce the minimum rate of interest thereon, or
impair the right to institute suit for the enforcement of any such payment on
or with respect to any such Debt Security or (ii) reduce the above-stated
percentage in principal amount of outstanding Debt Securities required to
modify or alter the Indenture.
The Indenture also provides that, without the consent of any holder of Debt
Securities, the Company, when authorized by a resolution of its Board of
Directors, and the Trustee, at any time and from time to time, may enter into
one or more supplemental Indenture to the Indenture to (i) evidence the
succession of another corporation or person to the Company or any Guarantor,
as the case may be, in the Indenture and in the Debt Securities, (ii) evidence
and provide for a successor Trustee, (iii) add to the covenants of the Company
or any Guarantor for the benefit of the holders of Debt Securities of all or
any series or to surrender any right or power conferred upon the Company or
any Guarantor in the Indenture, (iv) cure any ambiguity, correct or supplement
any provision which may be inconsistent or make any other provisions with
respect to matters or questions arising under the Indenture, provided the
interests of the holders of Debt Securities of any series are not adversely
affected, (v) add any additional Events of Default, (vi) make certain changes
with respect to Bearer Securities which do not adversely affect the interests
of the holders of Debt Securities of any series, (vii) add to, change or
eliminate any provision of the Indenture; provided that such addition, change
or elimination (a) becomes effective only when there is no Debt Security
outstanding of a series created prior to the execution of such supplemental
indenture which is adversely affected or (b) does not apply to any outstanding
Debt Securities, (viii) establish the form or terms of Debt Securities of any
series as permitted under the Indenture, (ix) evidence any changes to
corporate Trustee eligibility authorized by the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), or (x) add to or change or eliminate
any provision of the Indenture as necessary to comply with the Trust Indenture
Act provided such action does not adversely affect the interests of the
holders of Debt Securities of any series.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York.
REGARDING THE TRUSTEE
The Indenture contains certain limitations on the right of the Trustee, if
and when the Trustee becomes a creditor of the Company (or any other obligor
upon the Debt Securities), regarding the collection of such claims against the
Company (or any such other obligor). Except as provided in the following
sentence, the Indenture does not prohibit the Trustee from serving as trustee
under any other indenture to which the Company may be a party from time to
time or from engaging in other transactions with the Company. If the Trustee
acquires any conflicting interest and there is a default with respect to any
series of Debt Securities, it must eliminate such conflict or resign.
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DESCRIPTION OF CAPITAL STOCK
Authorized
The authorized capital stock of the Company consists of 75,000,000 shares of
Common Stock, $.001 par value, and 10,000,000 shares of Preferred Stock, $.001
par value.
Common Stock
The Company is authorized to issue 75,000,000 shares of Common Stock, $.001
par value per share, of which 37,424,477 shares were issued and outstanding as
of August 7, 1998. All of the outstanding shares of Common Stock and those
issuable upon completion of this offering, are and will be, duly authorized,
validly issued, fully paid and non-assessable. Holders of shares of Common
Stock are entitled to one vote for each share held of record on all matters to
be voted on by shareholders. There are no preemptive, subscription, conversion
or redemption rights pertaining to the Common Stock. Holders of shares of
Common Stock are entitled to receive such dividends as may be declared on
Common Stock by the Board of Directors out of funds legally available therefor
and to share ratably in the assets of the Company available upon liquidation
subject to rights of creditors and any shares of Preferred Stock. The holders
of shares of Common Stock do not have the right to cumulate their votes in the
election of directors and, accordingly, the holders of more than 50% of all
the Common Stock outstanding are able to elect all directors. The current
officers and directors beneficially held 5,022,975 (13.4%) of the shares
outstanding and 7,412,975 shares (18.6%) after giving full effect to the
exercise of their respective options exercisable within the succeeding 60 days
of August 7, 1998.
Preferred Stock
The Company is authorized to issue 10,000,000 shares of Preferred Stock,
$.001 par value per share. As of the date hereof, the Company had no shares of
Preferred Stock issued and outstanding.
The Preferred Stock may be divided by the Company's Board of Directors from
time to time into one or more series. The Board of Directors is authorized to
determine the rights, preferences, privileges and restrictions, including the
dividend rights, conversion rights, voting rights, terms of redemption
(including sinking fund provisions, if any) and liquidation preferences, of
any series of Preferred Stock and to fix the number of shares of any such
series without any further vote or action by stockholders. The Company has no
present plans, proposals, commitments or arrangements to issue any additional
shares of Preferred Stock. The Company's Certificate of Incorporation
authorizes the issuance of Preferred Stock with such designations, rights, and
preferences as may be determined from time to time by the Board of Directors.
Accordingly, the Board of Directors is empowered, without stockholder
approval, to issue Preferred Stock with dividend, liquidation, conversion,
voting or other rights that could adversely affect the voting power or other
rights of the holders of the Common Stock. Although the Preferred Stock may be
used for any lawful purpose, the Company has agreed not to use it as an anti-
takeover device that could be utilized as a method of discouraging, delaying
or preventing a change in control of the Company without the approval of the
Company's stockholders.
Warrants
On May 4, 1998 and May 13, 1998, the Company issued 241,600 and 344,900
redeemable Warrants to purchase shares of its Common Stock. The Warrants were
issued to certain qualified institutional buyers and investors in Private
Placements of units. Each unit was sold for $29.00 and consisted of two shares
of Common Stock and one Warrant. The Warrants are exercisable at a price of
$17.50 per share for three years commencing on their respective dates of
issuance. The Warrants are subject to redemption at $.01 per Warrant on five
prior business days' notice if the closing sale price of the Company's Common
Stock exceeds $25.00 per share for 15 consecutive trading days and the Company
notifies the holder it intends to force a mandatory conversion of the Warrants
and the Holder fails to exercise the Warrant. The shares of Common Stock
issuable upon exercise of the Warrants have been registered as part of another
Registration Statement.
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REGISTRAR AND TRANSFER AGENT
The Registrar and Transfer Agent for the Company's Common Stock is Corporate
Stock Transfer, Inc., Denver, Colorado.
PLAN OF DISTRIBUTION
The Company may sell the Securities from time to time in one or more series
to one or more underwriters for public offering and sale by them or may sell
the Securities to investors directly or through agents. Any such underwriter
or agent involved in the offer and sale of the Securities will be named in the
applicable Prospectus Supplement. The Company has reserved the right to sell
the Securities directly to investors on its own behalf in those jurisdictions
where and in such manner as it is authorized to do so.
Underwriters may offer and sell the Securities at a fixed price or prices,
which may be changed, at market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at negotiated prices. The
Company also may, from time to time, authorize dealers, acting as the
Company's agents, to offer and sell the Securities upon the terms and
conditions as are set forth in the applicable Prospectus Supplement. In
connection with the sale of the Securities, underwriters may receive
compensation from the Company in the form of underwriting discounts or
commissions and may also receive commissions from purchasers of the Securities
for whom they may act as agent. Underwriters may sell the Securities to or
through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agent.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of the Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the applicable Prospectus Supplement. Dealers and agents
participating in the distribution of the Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any
profit realized by them on resale of the Securities may be deemed to be
underwriting discounts and commissions. Underwriters, dealers and agents may
be entitled, under agreements entered into with the Company, to
indemnification against and contribution toward certain civil liabilities.
No Securities may be sold without delivery of the applicable Prospectus
Supplement describing the method and terms of each offering of any such
Securities.
LEGAL MATTERS
The validity of the Shares offered hereby will be passed upon by Snow Becker
Krauss P.C., 605 Third Avenue, New York, New York 10158. Snow Becker Krauss
P.C. owns 43,823 shares of the Company's Common Stock and individual members
of the firm own additional shares of Common Stock.
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EXPERTS
The consolidated financial statements of AgriBioTech, Inc. as of June 30,
1997 and 1996 and for the years then ended and the nine-month period ended
June 30, 1995, have been incorporated by reference herein in reliance upon the
report of KPMG Peat Marwick LLP, independent certified public accountants, and
upon the authority of said firm as experts in accounting and auditing. The
report of KPMG Peat Marwick LLP refers to the retroactive effect of a change
in accounting for convertible preferred stock.
The financial statements of Beachley Hardy Seed Company as of December 31,
1995 and 1994 and for the years then ended, have been incorporated by
reference herein in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated by reference herein and
upon the authority of said firm as experts in accounting and auditing.
The combined financial statements of Germain's Inc. and W-L Research, Inc.
as of September 30, 1995 and 1994 and for the years then ended have been
incorporated by reference herein in reliance upon the report of KPMG Peat
Marwick LLP, independent certified public accountants, incorporated by
reference herein and upon the authority of said firm as experts in accounting
and auditing.
The consolidated financial statements of E.F. Burlingham & Sons as of
December 31, 1996 and for the year then ended, have been incorporated by
reference herein in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated by reference herein and
upon the authority of said firm as experts in accounting and auditing.
The financial statements of Olsen Fennell Seeds, Inc. as of December 31,
1996 and for the year then ended have been incorporated by reference herein in
reliance upon the report of KPMG Peat Marwick LLP, independent certified
public accountants, incorporated by reference herein and upon the authority of
said firm as experts in accounting and auditing.
The combined financial statements of Seed Corporation of America, Inc. and
Green Seed Company Limited Partnership as of December 31, 1997 and 1996 and
for the years then ended have been incorporated by reference herein in
reliance upon the report of KPMG Peat Marwick LLP, independent certified
public accountants, incorporated by reference herein and upon the authority of
said firm as experts in accounting and auditing.
The financial statements of Lofts Seed, Inc. as of November 30, 1997 and
December 31, 1996 and for the eleven-month period ended November 30, 1997 and
the six-month period ended December 31, 1996 have been incorporated by
reference herein in reliance upon the report of Cannon & Company, independent
certified public accountants, incorporated by reference herein and upon the
authority of said firm as experts in accounting and auditing.
The financial statements of Lofts Seeds, Inc. as of June 30, 1996 and 1995
and for the years then ended have been incorporated by reference herein in
reliance upon the report of Amper, Politziner & Mattia, independent certified
public accountants, incorporated by reference herein and upon the authority of
said firm as experts in accounting and auditing.
The financial statements of Budd Seed, Inc. as of November 30, 1997 and
December 31, 1996 and 1995 and for the eleven-month period ended November 30,
1997 and the years ended December 31, 1996 and 1995 have been incorporated by
reference herein in reliance upon the report of Cannon & Company, independent
certified public accountants, incorporated by reference herein and upon the
authority of said firm as experts in accounting and auditing.
The financial statement of Willamette Seed Co. as of June 30, 1997 and 1996
and for the years then ended have been incorporated by reference herein in
reliance on the report of Price, Koontz & Davies, P.C., independent certified
public accountants, incorporated by reference herein and upon the authority of
said firm as experts in accounting and auditing.
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The financial statements of Van Dyke Seed Company, Inc. as of December 31,
1997 and for the year then ended, have been incorporated by reference herein
in reliance upon the report of Jones & Roth P.C., independent certified public
accountants, incorporated by reference herein and upon the authority of said
firm as experts in accounting and auditing.
The combined financial statements of Zajac Performance Seeds, Inc. et al. as
of December 31, 1997 and for the year then ended, have been incorporated by
reference herein in reliance upon the report of Ludwig Bulmer Seifert & Lane,
independent certified public accountants, incorporated by reference herein and
upon the authority of said firm as experts in accounting and auditing.
The consolidated financial statements of Ramy Commercial Properties, Inc.
and Subsidiary as of June 30, 1997 and 1996, and for the years then ended,
have been incorporated by reference herein in reliance upon the report of
Hawkins, Ash, Baptie & Company, LLP, independent certified public accountants,
incorporated by reference herein and upon the authority of said firm as
experts in accounting and auditing.
The consolidated financial statements of Oseco Inc. as of June 30, 1997 and
for the year then ended, have been incorporated by reference herein in
reliance upon the report of KPMG, chartered accountants, incorporated by
reference herein and upon the authority of said firm as experts in accounting
and auditing.
16
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR ANY OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR MAKE ANY REPRESENTATION OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS, OR ANY PROSPECTUS SUPPLEMENT,
AND IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT
DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF
THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
AN IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY DATE
SUBSEQUENT TO THE DATE HEREOF.
---------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information...................................................... 2
Incorporation of Certain Documents by Reference............................ 3
The Company................................................................ 4
Use of Proceeds............................................................ 4
Ratio of Earnings to Fixed Charges......................................... 4
Selected Financial Data.................................................... 5
Description of Debt Securities............................................. 7
Description of Capital Stock............................................... 13
Plan of Distribution....................................................... 14
Legal Matters.............................................................. 14
Experts.................................................................... 15
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
AGRIBIOTECH, INC.
$125,000,000 OF DEBT SECURITIES
AND 4,500,000 SHARES OF COMMON STOCK
---------------
PROSPECTUS
---------------
AUGUST , 1998
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses in connection with the issuance and distribution of the
securities being registered shall be borne by the Registrant and are estimated
as follows:
<TABLE>
<S> <C>
SEC Filing Fee.................................................. $ 65,607.06
Printing and Engraving Expenses................................. 10,000.00
Legal Fees and Expenses......................................... 20,000.00
Accounting Fees and Expenses.................................... 20,000.00
Registrar and Transfer Agent's Fee.............................. 5,000.00
Miscellaneous................................................... 9,392.94
-----------
Total:........................................................ $130,000.00
===========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Except to the extent hereinafter set forth, there is no statute, charter
provision, by-law, contract or other arrangement under which any controlling
person, director or officer of the Registrant is insured or indemnified in any
manner against liability which he may incur in his capacity as such.
The Company maintains insurance protecting its directors and officers
against any liability asserted against or incurred by them in such capacity or
arising out of their status as such.
Article Ninth of the Registrant's Certificate of Incorporation provides for
the indemnification of directors and officers to the fullest extent allowed by
the Nevada General Corporation Law ("GCL"), which provides in relevant part as
follows:
Section 78.751: Advancement of Expenses
1. Any discretionary indemnification under section 5 of this act, unless
ordered by a court or advanced pursuant to subsection 5, may be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances. The determination must be made:
(a) By the stockholders;
(b) By the board of directors by majority vote of a quorum consisting of
directors who were not parties to the action, suit or proceeding;
(c) If a majority vote of a quorum consisting of directors who were not
parties to the action, suit or proceeding so orders, by independent legal
counsel in a written opinion; or
(d) If a quorum consisting of directors who were not parties to the
action, suit or proceeding cannot be obtained, by independent legal counsel
in a written opinion.
2. The articles of incorporation, the bylaws or an agreement made by the
corporation may provide that the expenses of officers and directors incurred
in defending a civil or criminal action, suit or proceeding must be paid by
the corporation as they are incurred and in advance of the final disposition
of the action, suit or proceeding, upon receipt of an undertaking by or on
behalf of the director or officer to repay the amount if it is ultimately
determined by a court of competent jurisdiction that he is not entitled to be
indemnified by the corporation. The provisions of this subsection do not
affect any rights to advancement of expenses to which corporate personnel
other than directors or officers may be entitled under any contract or
otherwise by law.
II-1
<PAGE>
3. The indemnification and advancement of expenses authorized in or ordered
by a court pursuant to this section:
(a) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the
articles of incorporation or any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, for either an action in his official
capacity or an action in another capacity while holding his office, except
that indemnification, unless ordered by a court pursuant to section 5 of
this act or for the advancement of expenses made pursuant to subsection 2,
may not be made to or on behalf of any director or officer if a final
adjudication establishes that his acts or omissions involved intentional
misconduct, fraud or a knowing violation of the law and was material to the
cause of action.
(b) Continues for a person who has ceased to be a director, officer,
employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person.
Indemnification of Officers, Directors, Employees and Agents.
1. A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
except an action by or in the right of the corporation, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, including attorneys' fees, judgments,
fines and amounts paid in settlement actually and reasonably incurred by him
in connection with the action, suit or proceeding if he acted in good faith
and in a manner which he reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, does not, of
itself, create a presumption that the person did not act in good faith and in
a manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and that, with respect to any criminal action or
proceeding, he had reasonable cause to believe that his conduct was unlawful.
2. A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses,
including amounts paid in settlement and attorneys' fees actually and
reasonably incurred by him in connection with the defense or settlement of the
action or suit if he acted in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the corporation.
Indemnification may not be made for any claim, issue or matter as to which
such a person has been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the corporation or for
amounts paid in settlement to the corporation, unless and only to the extent
that the court in which the action or suit was brought or other court of
competent jurisdiction determines upon application that in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
3. To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections 1 and 2, or in defense
of any claim, issue or matter therein, he must be indemnified by the
corporation against expenses, including attorneys' fees, actually and
reasonably incurred by him in connection with the defense.
II-2
<PAGE>
Section 78.752: Insurance and Other Financial Arrangement Against Liability
of Directors, Officers, Employees and Agents.
1. A corporation may purchase and maintain insurance or make other financial
arrangements on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise for any
liability asserted against him and liability and expenses incurred by him in
his capacity as a director, officer, employee or agent, or arising out of his
status as such, whether or not the corporation has the authority to indemnify
him against such liability and expenses.
2. The other financial arrangements made by the corporation pursuant to
subsection 1 may include the following:
(a) The creation of a trust fund.
(b) The establishment of a program of self-insurance.
(c) The securing of its obligation of indemnification by granting a
security interest or other lien on any assets of the corporation.
(d) The establishment of a letter of credit, guaranty or surety.
No financial arrangement made pursuant to this subsection may provide
protection for a person adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable for intentional misconduct,
fraud or a knowing violation of law, except with respect to the advancement of
expenses or indemnification ordered by a court.
3. Any insurance or other financial arrangement made on behalf of a person
pursuant to this section may be provided by the corporation or any other
person approved by the board of directors, even if all or part of the other
person's stock or other securities is owned by the corporation.
4. In the absence of fraud:
(a) The decision of the board of directors as to the propriety of the
terms and conditions of any insurance or other financial arrangement made
pursuant to this section and the choice of the person to provide the
insurance or other financial arrangement is conclusive; and
(b) The insurance or other financial arrangement:
(1) Is not void or voidable; and
(2) Does not subject any director approving it to personal liability
for his action,
even if a director approving the insurance or other financial arrangement
is a beneficiary of the insurance or other financial arrangement.
5. A corporation or its subsidiary which provides self-insurance for itself
or for another affiliated corporation pursuant to this section is not subject
to the provisions of Title 57 of the Nevada Revised Statutes.
Article VI of the Registrant's Bylaws provides as follows:
INDEMNIFICATION
On the terms, to the extent, and subject to the condition prescribed by
statute and by such rules and regulations, not inconsistent with statute, as
the Board of Directors may in its discretion impose in general or particular
cases or classes of cases, (a) the Corporation shall indemnify any person
made, or threatened to be made, a party to an action or proceeding, civil or
criminal, including an action by or in the right of any other corporation of
any type or kind, domestic or foreign, or any partnership, joint venture,
trust, employee benefit plan or other enterprise which any director or officer
of the Corporation served in any capacity at the request of
II-3
<PAGE>
the Corporation, by reason of the fact that he, his testator or intestate, was
a director or officer of the Corporation, or served such other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
in any capacity, against judgments, fines, amounts paid in settlement and
reasonable expenses, including attorneys' fees, actually and necessarily
incurred as a result of such action or proceeding, or any appeal therein, and
(b) the Corporation may pay, in advance of final disposition of any such
action or proceeding, expenses incurred by such person in defending such
action or proceeding.
On the terms, to the extent, and subject to the conditions prescribed by
statute and by such rules and regulations, not inconsistent with statute, as
the Board of Directors may in its discretion impose in general or particular
cases or classes of cases, (a) the Corporation shall indemnify any person made
a party to an action by or in the right of the Corporation to procure a
judgment in its favor, by reason of the fact that he, his testator or
intestate, is or was a director or officer of the Corporation, against the
reasonable expenses, including attorneys' fees, actually and necessarily
incurred by him in connection with the defense of such action, or in
connection with an appeal therein, and (b) the Corporation may pay, in advance
of final disposition of any such action, expenses incurred by such person in
defending such action or proceeding.
ITEM 16. EXHIBITS, LIST AND REPORTS ON FORM 8-K
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
1.1 Underwriting Agreement for Common Stock(1)
1.2 Underwriting Agreement for Debt Securities(1)
*5.1 Securities opinion of Snow Becker Krauss P.C.
*10.1 Indenture
*12.1 Statement regarding Computation of Ratio of Earnings to Fixed
Charges
*23.1 Consent of KPMG Peat Marwick LLP
*23.2 Consent of Cannon & Company
*23.3 Consent of Price, Koontz & Davies, P.C.
*23.4 Consent of Amper, Politziner & Mattia
*23.5 Consent of KPMG, chartered accountants
*23.6 Consent of Jones & Roth, P.C.
*23.7 Consent of Ludwig Bulmer Seifert & Lane
*23.8 Consent of Hawkins, Ash, Baptie & Company, LLP
*23.9 Consent of Snow Becker Krauss P.C. is included in Exhibit 5.1 to
this Registration Statement.
24.1 Power of Attorney (on signature page of the initial filing of the
Registration Statement)
25.1 Statement of Eligibility of Trustee(1)
</TABLE>
- --------
* Filed with this Registration Statement.
(1) To be filed by Amendment.
II-4
<PAGE>
ITEM 17. UNDERTAKINGS
The Registrant hereby undertakes:
(1) To file, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "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 volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(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 (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment shall be deemed 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 file a post-effective amendment to remove from registration any of
the securities being registered that remain unsold at the end of the
offering.
(4) For the purpose of determining any liability under the Securities
Act, to treat each filing of the Company's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this Registration Statement as a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time to be the initial bona fide
offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the issuer pursuant to the foregoing provisions, or otherwise,
the issuer has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the issuer of expenses incurred or paid by a director,
officer or controlling person of the issuer 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
issuer 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-5
<PAGE>
(6) For determining any liability under the Securities Act, to treat the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the issuer under Rule 424(b)(1), or (4) or 497(h)
under the Securities Act as part of this registration statement as of the
time the Commission declared it effective.
(7) For determining any liability under the Securities Act, to treat each
post-effective amendment that contains a form of prospectus as a new
registration statement for the securities offered in the registration
statement, and that offering of the securities at that time as the initial
bona fide offering of those securities.
(8) To file an application for the purpose of determining the eligibility
of the trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed by
the Commission under Section 305(b)(2) of the Act.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Henderson, State of Nevada, on August 10, 1998.
Agribiotech, Inc.
By: /s/ Johnny R. Thomas
-----------------------------------
Johnny R. Thomas, Chairman of the
Board
POWER OF ATTORNEY
Each of the undersigned hereby authorizes Johnny R. Thomas or Henry A.
Ingalls as his attorneys-in-fact to execute in the name of each such person and
to file such amendments (including post-effective amendments) to this
registration statement as the Registrant deems appropriate and appoints such
persons as attorneys-in-fact to sign on his behalf individually and in each
capacity stated below and to file all amendments, exhibits, supplements and
post-effective amendments to this registration statement.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons on behalf of the Registrant
on August 10, 1998 and in the capacities indicated.
/s/ Johnny R. Thomas Chairman of the Board
- ----------------------------------- (Principal Executive
Johnny R. Thomas Officer and Director)
/s/ Kent Schulze President and Director
- -----------------------------------
Kent Schulze
/s/ Henry A. Ingalls Vice President and
- ----------------------------------- Treasurer (Principal
Henry A. Ingalls Financial and Accounting
Officer)
/s/ Scott J. Loomis Vice President and Director
- -----------------------------------
Scott J. Loomis
/s/ John C. Francis Vice President, Secretary
- ----------------------------------- and Director
John C. Francis
/s/ James W. Hopkins Director
- -----------------------------------
James W. Hopkins
/s/ Richard P. Budd Director
- -----------------------------------
Richard P. Budd
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
1.1 Underwriting Agreement for Common Stock(1)
1.2 Underwriting Agreement for Debt Securities(1)
*5.1 Securities opinion of Snow Becker Krauss P.C.
*10.1 Indenture
*12.1 Statement regarding Computation of Ratio of Earnings to Fixed
Charges
*23.1 Consent of KPMG Peat Marwick LLP
*23.2 Consent of Cannon & Company
*23.3 Consent of Price, Koontz & Davies, P.C.
*23.4 Consent of Amper, Politziner & Mattia
*23.5 Consent of KPMG, chartered accountants
*23.6 Consent of Jones & Roth, P.C.
*23.7 Consent of Ludwig Bulmer Seifert & Lane
*23.8 Consent of Hawkins, Ash, Baptie & Company, LLP
*23.9 Consent of Snow Becker Krauss P.C. is included in Exhibit 5.1 to
this Registration Statement.
24.1 Power of Attorney (on signature page of the initial filing of the
Registration Statement)
25.1 Statement of Eligibility of Trustee(1)
</TABLE>
- --------
* Filed with this Registration Statement.
(1) To be filed by Amendment.
<PAGE>
EXHIBIT 5.1
August 7, 1998
Ladies and Gentlemen:
At your request, we have examined the Registration Statement of AgriBioTech,
Inc., a Nevada corporation (the "Company"), on Form S-3 (the "Registration
Statement"), to which this letter is attached as Exhibit 5.1, filed by the
Company. In order to register under the Securities Act of 1993 (the
"Securities Act"), (a) up to an aggregate of $143,750,000 of the Company's
debt securities, in one or more series (the "Debt Securities") and (b)
5,175,000 shares of the Company's Common Stock, par value $.001 per share (the
"Common Stock"). The Company reserves the right to allocate those amounts
between Debt Securities and Common Stock under this Universal Shelf
Registration at the time supplements are filed to this Prospectus. The Debt
Securities and Common Stock are referred to herein collectively as the
"Securities."
We have examined the Certificate of Incorporation of the Company, its
Bylaws, the form of Omnibus Indenture attached to the Registration Statement
as Exhibit 10.1 (the "Omnibus Indenture") and such other corporate records,
certificates, documents and matters of law as we have deemed necessary to
render this opinion.
Based on the foregoing and subject to compliance with applicable state
securities and "Blue Sky" laws and the exceptions set forth below, we are of
the opinion that:
1. The issuance and sale by the Company of the Securities, as provided in
the Registration Statement, have been duly and validly authorized by all
necessary corporate action of the Company.
2. When (a) the Omnibus Indenture and supplemental indentures (the
"Indentures") have been qualified under the Trust Indenture Act of 1939, (b)
the Debt Securities have been duly established by the applicable Indentures
duly authenticated by the trustee and duly executed and delivered on behalf of
the Company against payment therefor in accordance with the terms and
provisions of the applicable Indentures and as contemplated by the
Registration Statement, the prospectus therein contained (the "Prospectus")
and the related Prospectus Supplement(s), (b) when the Registration Statement
and any required post-effective amendment thereto and any and all Prospectus
Supplement(s) required by applicable laws have all become effective under the
Securities Act, (c) assuming that the terms of the Debt Securities and the
applicable Indentures as executed and delivered are as described in the
Registration Statement, the Prospectus and the related Prospectus
Supplement(s) and (d) assuming that the Debt Securities are then issued and
sold as contemplated in the Registration Statement, the Prospectus and the
related Prospectus Supplement(s), the Debt Securities will be constituted
valid and legally binding obligations of the Company, enforceable against the
Company in accordance with the terms of the Debt Securities.
3. When (a) the Indentures have been qualified under the Trust Indenture Act
of 1939, (b) the Debt Securities have been duly established by the applicable
Indentures duly authenticated by the trustee and duly executed and delivered
on behalf of the Company against payment therefor in accordance with the terms
and provisions of the applicable Indentures and as contemplated by the
Registration Statement, the Prospectus and the related Prospectus
Supplement(s), (b) when the Registration Statement and any required post-
effective amendment thereto and any and all Prospectus Supplement(s) required
by applicable laws have all become effective under the Securities Act, (c)
assuming that the terms of the Debt Securities and the applicable Indentures
as executed and delivered are as described in the Registration Statement, the
Prospectus and the related Prospectus Supplement(s) and (d) assuming that the
Debt Securities are then issued and sold as contemplated in the Registration
Statement, the Prospectus and the related Prospectus Supplement(s), the Debt
Securities will be constituted valid and binding obligations of the Company,
enforceable against the Company in accordance with the terms of the Debt
Securities.
4. When (a) the Registration Statement and any required post-effective
amendment thereto and any and all Prospectus Supplement(s) required by
applicable laws have all become effective under the Securities Act,
(b) assuming that the terms of the Common Stock as issued and sold are as
described in the Registration Statement, the Prospectus and the related
Prospectus Supplement(s) and (c) assuming that the Common Stock is
<PAGE>
then issued and sold as contemplated in the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), the Common Stock will be
duly authorized, validly issued, fully paid and nonassessable.
The opinions expressed in paragraphs 2, 3 and 4 above, related to whether
the securities described therein will be valid and legally binding obligations
of the Company and/or the Subsidiary Guarantors, are qualified as to:
A. limitations imposed by applicable bankruptcy, insolvency, reorganization,
liquidation, receivership, conservatorship, readjustment of debt, arrangement,
moratorium, fraudulent conveyance or other laws relating to or affecting the
rights of creditors, generally;
B. limitations imposed by general principles of equity, including without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing, and the possible unavailability of specific performance, injunctive
relief or other equitable remedies, regardless of whether such enforceability
is considered in a proceeding in equity or at law; and
C. the effect of applicable court decisions holding that provisions of
agreements are unenforceable where the breach thereof imposes restrictions or
burdens on a debtor or guarantor and it cannot be demonstrated that the
enforcement thereof is necessary for the protection of the creditor; and the
effect of applicable statutes or court decisions limiting in certain
circumstances enforcement of provisions imposing penalties, forfeitures, late
payment charges or increases in interest rates upon delinquency in payment or
default; and the enforceability of any choice of forum which may be included
in the securities, which may be subject to limitation by certain procedural
rules of and statutes applicable to the Federal courts.
We consent to the use of this opinion as an Exhibit to the Registration
Statement and to use of our name in the Prospectus constituting a part
thereof.
Respectfully submitted,
/s/ Snow Becker Krauss P.C.
<PAGE>
EXHIBIT 10.1
- --------------------------------------------------------------------------------
INDENTURE
- --------------------------------------------------------------------------------
AGRIBIOTECH, INC.
AS ISSUER,
AND
_____________________________________
AS TRUSTEE
- -------------------------------------------------------------------------------
AUGUST , 1998
---
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS /*/
-----------------
<TABLE>
<CAPTION> Page
<S> <C>
ARTICLE ONE
Definitions And Other Provisions Of General Application
-------------------------------------------------------
SECTION 1.01. Definitions 1
--
SECTION 1.02. Compliance Certificates and Opinions 8
--
SECTION 1.03. Form of Documents Delivered to Trustee 9
--
SECTION 1.04. Acts of Holders 10
--
SECTION 1.05. Notices, etc., to Trustee and Company 12
--
SECTION 1.06. Notices to Holders; Waiver 12
--
SECTION 1.07. Language of Notices, etc 13
--
SECTION 1.08. Conflict with Trust Indenture Act 13
--
SECTION 1.09. Effect of Headings and Table of Contents 13
--
SECTION 1.10. Successors and Assigns 13
--
SECTION 1.11. Separability Clause 13
--
SECTION 1.12. Benefits of Indenture 13
--
- ---------------------------
/*/ This Table of Contents is not part of the Indenture.
</TABLE>
i
<PAGE>
<TABLE>
<S> <C> <C>
SECTION 1.13. Legal Holidays 14
--
SECTION 1.14. Governing Law; Choice of Forum 14
--
ARTICLE TWO
Security Forms
--------------
SECTION 2.01. Forms Generally 15
--
SECTION 2.02. Form of Securities 15
--
SECTION 2.03. Form of Trustee's Certificate of Authentication 16
--
SECTION 2.04. Global Securities 16
--
ARTICLE THREE
The Securities
--------------
SECTION 3.01. Title and Terms 17
--
SECTION 3.02. Denominations 19
--
SECTION 3.03. Execution, Authentication, Delivery and Dating 19
--
SECTION 3.04. Temporary Securities 21
--
SECTION 3.05. Registration, Registration of Transfer and Exchange 24
--
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities 26
--
SECTION 3.07. Payment of Interest; Interest Rights Preserved 27
--
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C> <C>
SECTION 3.08. Persons Deemed Owners 28
--
SECTION 3.09. Cancellation 29
--
SECTION 3.10. Computation of Interest 29
--
SECTION 3.11. Form of Certification 29
--
ARTICLE FOUR
Redemption Of Securities
------------------------
SECTION 4.01. Applicability of Article 30
--
SECTION 4.02. Election To Redeem; Notice to Trustee 30
--
SECTION 4.03. Selection by Security Registrar of Securities To Be Redeemed 30
--
SECTION 4.04. Notice of Redemption 31
--
SECTION 4.05. Deposit of Redemption Price 32
--
SECTION 4.06. Securities Payable on Redemption Date 32
--
SECTION 4.07. Securities Redeemed in Part 33
--
ARTICLE FIVE
Covenants
---------
SECTION 5.01. Payment of Principal, Premium and Interest 33
--
SECTION 5.02. Maintenance of Office or Agency 33
--
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C> <C>
SECTION 5.03. Money for Security Payments To Be Held in Trust 35
--
SECTION 5.04. Additional Amounts 36
--
SECTION 5.05. Statement as to Compliance 37
--
SECTION 5.06. Maintenance of Corporate Existence, Rights and Franchises 37
--
ARTICLE SIX
Holders' Lists And Reports By Trustee And Company
-------------------------------------------------
SECTION 6.01. Company To Furnish Trustee Names and Addresses of Holders 38
--
SECTION 6.02. Preservation of Information; Communications to Holders 38
--
SECTION 6.03. Reports by Trustee 39
--
SECTION 6.04. Reports by Company 40
--
ARTICLE SEVEN
Remedies
--------
SECTION 7.01. Events of Default 40
--
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment 41
--
SECTION 7.03. Collection of Indebtedness and Suits for Enforcement
by Trustee 42
--
SECTION 7.04. Trustee May File Proofs of Claim 43
--
SECTION 7.05. Trustee May Enforce Claims Without Possession of Securities 44
--
</TABLE>
iv
<PAGE>
<TABLE>
<S> <C> <C>
SECTION 7.06. Application of Money Collected 44
--
SECTION 7.07. Limitation on Suits 45
--
SECTION 7.08. Unconditional Right of Holders To Receive Principal, Premium
and Interest 45
--
SECTION 7.09. Restoration of Rights and Remedies 45
--
SECTION 7.10. Rights and Remedies Cumulative 46
--
SECTION 7.11. Delay or Omission Not Waiver 46
--
SECTION 7.12. Control by Holders 46
--
SECTION 7.13. Waiver of Past Defaults 46
--
SECTION 7.14. Undertaking for Costs 47
--
SECTION 7.15. Waiver of Stay or Extension Laws 47
--
ARTICLE EIGHT
The Trustee
-----------
SECTION 8.01. Certain Duties and Responsibilities 47
--
SECTION 8.02. Notice of Default 49
--
SECTION 8.03. Certain Rights of Trustee 49
--
SECTION 8.04. Not Responsible for Recitals or Issuance of Securities 50
--
</TABLE>
v
<PAGE>
<TABLE>
<S> <C> <C>
SECTION 8.05. May Hold Securities 50
--
SECTION 8.06. Money Held In Trust 49
--
SECTION 8.07. Compensation and Reimbursement 50
--
SECTION 8.08. Disqualification; Conflicting Interests 51
--
SECTION 8.09. Corporate Trustee Required; Eligibility 51
--
SECTION 8.10. Resignation and Removal; Appointment of Successor 52
--
SECTION 8.11. Acceptance of Appointment by Successor 53
--
SECTION 8.12. Merger, Conversion, Consolidation or Succession
to Business of Trustee 54
--
SECTION 8.13. Preferential Collection of Claims Against Company 55
--
SECTION 8.14. Appointment of Authenticating Agents 55
--
ARTICLE NINE
Supplemental Indentures
-----------------------
SECTION 9.01. Supplemental Indentures Without Consent of Holders 56
--
SECTION 9.02. Supplemental Indentures with Consent of Holders 58
--
SECTION 9.03. Execution of Supplemental Indentures 59
--
SECTION 9.04. Effect of Supplemental Indentures 59
--
</TABLE>
vi
<PAGE>
<TABLE>
<S> <C> <C>
SECTION 9.05. Conformity with Trust Indenture Act 59
--
SECTION 9.06. Reference in Securities to Supplemental Indentures 59
--
ARTICLE TEN
Consolidation, Merger, Conveyance Or Transfer
---------------------------------------------
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms 59
--
SECTION 10.02. Successor Corporation Substituted 60
--
ARTICLE ELEVEN
Satisfaction And Discharge
--------------------------
SECTION 11.01. Satisfaction and Discharge of Indenture 60
--
SECTION 11.02. Application of Trust Money 61
--
SECTION 11.03. Reinstatement 61
--
ARTICLE TWELVE
Immunity Of Incorporators, Stockholders, Officers And Directors
---------------------------------------------------------------
SECTION 12.01. Exemption from Individual Liability 62
--
ARTICLE THIRTEEN
Book-Entry Provisions For Global Securities
-------------------------------------------
SECTION 13.01. Applicability of Article 62
--
SECTION 13.02. Book-Entry Provisions For Global Securities 62
--
</TABLE>
ARTICLE FOURTEEN
vii
<PAGE>
<TABLE>
<S> <C> <C>
Obligor Guarantee
-----------------
SECTION 14.01. Applicability of Article 65
--
SECTION 14.02. Obligor Guarantee 65
--
SECTION 14.03. Nature of Obligor Guarantee 65
--
SECTION 14.04. Authorization 66
--
SECTION 14.05. Certain Waivers 66
--
SECTION 14.06. No Subrogation; Certain Agreements 67
--
SECTION 14.07. Bankruptcy No Discharge 68
--
SECTION 14.08. Severability of Void Obligations under Obligor Guarantee 68
--
SECTION 14.09. Right of Contribution 68
--
ARTICLE FIFTEEN
Repayment At The Option Of Holders
----------------------------------
SECTION 15.01. Applicability of Article 69
--
SECTION 15.02. Repayment of Securities 69
--
SECTION 15.03. Exercise of Option, Notice 70
--
SECTION 15.04. Election of Repayment by Remarketing Entities 71
--
SECTION 15.05. Securities Payable on the Repayment Date 71
--
</TABLE>
viii
<PAGE>
<TABLE>
<S> <C> <C>
ARTICLE SIXTEEN
Meetings Of Holders Of Securities
---------------------------------
SECTION 16.01. Purposes for Which Meetings May Be Called 71
--
SECTION 16.02. Call, Notice and Place of Meetings 71
--
SECTION 16.03. Persons Entitled To Vote at Meetings 72
--
SECTION 16.04. Quorum; Action 72
--
SECTION 16.05. Determination of Voting Rights; Conduct and Adjournment of
Meetings 73
--
SECTION 16.06. Counting Votes and Recording Action of Meetings 74
--
ARTICLE SEVENTEEN
Miscellaneous
-------------
SECTION 17.01. Counterparts 74
--
EXHIBIT A FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY CERTIFICATE A-1
EXHIBIT B FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF A
PORTION OF A TEMPORARY GLOBAL BEARER SECURITY
CERTIFICATE B-1
EXHIBIT C FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL S.A. TO OBTAIN INTEREST PRIOR TO A GLOBAL
EXCHANGE DATE CERTIFICATE C-1
EXHIBIT D FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNERS
TO OBTAIN INTEREST PRIOR TO A GLOBAL EXCHANGE
DATE CERTIFICATE D-1
</TABLE>
ix
<PAGE>
TABLE SHOWING REFLECTION IN INDENTURE OF CERTAIN
PROVISIONS OF TRUST INDENTURE ACT OF 1939/*/
<TABLE>
<CAPTION>
<S> <C>
TIA Section Reflected in Indenture Section
310(a)(1)................... 8.09
(a)(2)................... 8.09
(a)(3)................... Not Applicable
(a)(4)................... Not Applicable
(a)(5)................... 8.09
(b)...................... 8.08
8.10
(c)...................... Not Applicable
311(a)...................... 8.13
(b)...................... 8.13
312(a)...................... 6.01
6.02(i)
(b)...................... 6.02(ii)
(c)...................... 6.02(iii)
313(a)...................... 6.03(i)
(b)...................... 6.03(ii)
(c)...................... 6.03(i),(ii) and (iii)
(d)...................... 6.03(iii)
314(a)...................... 6.04
5.05
(b)...................... Not Applicable
(c)(1)................... 1.02
(c)(2)................... 1.02
(c)(3)................... Not Applicable
(d)...................... Not Applicable
(e)...................... 1.02
(f)...................... Not Applicable
315(a)...................... 8.01(i)
8.01(iii)
(b)...................... 8.02
(c)...................... 8.01(ii)
(d)...................... 8.01
(d)(1)................... 8.01(i)
(d)(2)................... 8.01(iii)(b)
- -----------------------------
/*/ This Table is not part of the Indenture.
</TABLE>
x
<PAGE>
<TABLE>
<CAPTION>
TIA Section Reflected in Indenture Section
<S> <C>
(d)(3).................... 8.01(iii)(c)
(e)....................... 7.14
316(a)....................... 1.01
316(a)(1)(A)................. 7.02
7.12
(a)(1)(B)................. 7.13
(a)(2).................... Not Applicable
(b)....................... 7.08
(c)....................... 1.04(viii)
317(a)(1).................... 7.03
(a)(2).................... 7.04
(b)....................... 5.03
318(a)....................... 1.08
(c)....................... 1.08
</TABLE>
xi
<PAGE>
EXHIBIT 10.1
THIS INDENTURE is entered into as of ___________, 1998, between
AGRIBIOTECH, INC., a Nevada corporation (the "Company"), and __________________,
-------
a ______ banking corporation (the "Trustee").
-------
RECITALS OF THE COMPANY
The Company deems it necessary from time to time to issue its unsecured
debentures, notes, bonds and other evidences of indebtedness to be issued in one
or more series (hereinafter called the "Securities") as hereinafter set forth,
----------
and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series thereof,
as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
-------------------------------------------------------
SECTION 1.01. Definitions. For all purposes of this Indenture, except as
--------------------------
otherwise expressly provided or unless the context otherwise requires:
(i) the term "this Indenture" means this instrument as originally
--------------
executed or as it may from time to time be supplemented or amended by one
or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of particular
series of Securities established as contemplated by Section 3.01;
(ii) all references in this instrument to designated "Articles,"
--------
"Sections" and other subdivisions are to the designated Articles, Sections
--------
and other subdivisions of this Indenture. The words "herein," "hereof" and
------ ------
"hereunder" and other words of similar import refer to this Indenture as a
---------
whole and not to any particular Article, Section or other subdivision;
(iii) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(iv) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein; and
1
<PAGE>
(v) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as may be otherwise expressly provided herein or in
one or more indentures supplemental hereto, the term "generally accepted
------------------
accounting principles" with respect to any computation required or
---------------------
permitted hereunder shall mean such accounting principles as are generally
accepted at the date of such computation.
"Act," when used with respect to any Holder, has the meaning specified in
---
Section 1.04.
"Affiliate" of any specified Person means any other Person, directly or
---------
indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
- --------
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; provided that a
Person shall be deemed to have such power with respect to the Company if such
Person is the beneficial owner of Capital Stock representing 5% or more of the
total voting power of the Voting Stock (on a fully diluted basis) of the Company
or of rights or warrants to purchase such Capital Stock (whether or not
currently exercisable). The terms "controlling" and "controlled" have meanings
----------- ----------
correlative to the foregoing.
"Agent Members" has the meaning specified in Section 13.02.
-------------
"Authenticating Agent" means any Person authorized to act on behalf of the
--------------------
Trustee to authenticate Securities pursuant to Section 8.14.
"Authorized Newspaper" means a newspaper designated by the Company, in an
--------------------
official language of the country of publication or in the English language,
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in the place in
connection with which the term is used or in the financial community of such
place. Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in different
newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bankruptcy Code" means Title 11 of the United States Code (11 U.S.C.
---------------
Section 101 et seq.), as amended from time to time, or any successor statute.
"Bearer Security" means any Security in the form established pursuant to
---------------
Section 2.02 which is payable to bearer, including, without limitation, unless
the context otherwise indicates, a Security in global bearer form.
"Beneficiary" has the meaning specified in Section 14.02.
-----------
"Board of Directors" means either the board of directors of the Company or,
------------------
except for purposes of Sections 2.02 and 3.01, any duly authorized committee of
that board.
2
<PAGE>
"Board Resolution" means a copy of a resolution certified by the Secretary
----------------
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day which is not a Legal Holiday.
------------
"Capital Stock" of any Person means any and all shares, interests, rights
-------------
to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any preferred
stock, but excluding any debt securities convertible into such equity.
"CEDEL" or "CEDEL S.A." means Cedel Bank, Societe Anonyme, or its
----- ----------
successors.
"Commission" means the Securities and Exchange Commission, as from time to
----------
time constituted, or if any time after the execution and delivery of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
"Common Depositary" has the meaning specified in Section 3.04(b)(ii).
-----------------
"Company" means the Person named as the "Company" in the first paragraph of
------- -------
this instrument until any successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Company" shall
-------
mean any such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written request
--------------- -------------
or order signed in the name of the Company by its Chairman of the Board, its
President, a Vice Chairman of the Board, or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Comptroller, an Assistant Comptroller,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"corporation" includes corporations, associations, companies and business
-----------
trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
------
"Defaulted Interest" has the meaning specified in Section 3.07.
------------------
"Depositary" means, with respect to the Securities of any series issuable
----------
or issued in the form of a Global Security, the Person designated as Depositary
by the Company pursuant to Section 3.01 until a successor Depositary shall have
been appointed pursuant to Section 3.05, and thereafter "Depositary" shall mean
----------
or include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
----------
Securities of any such series shall mean the Depositary with respect to the
Securities of that series.
"Dollar" or "$" means the coin or currency of the United States of America
------ -
as at the time of payment which is legal tender for the payment of public and
private debts.
3
<PAGE>
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
---------
Office, as operator of the Euroclear System or its successor.
"Event of Default" has the meaning specified in Section 7.01.
----------------
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
------------
time to time, and any statute successor thereto.
"fair valuation" and "fair salable value" have the meanings specified in
-------------- ------------------
Section 14.09.
"Funding Guarantor" has the meaning specified in Section 14.09.
-----------------
"Global Exchange Date" has the meaning specified in Section 3.04(b)(iv).
--------------------
"Global Security" means a Security, including a Temporary Global Bearer
---------------
Security, issued to evidence all of a part of a series of Securities.
"Guarantee" means any obligation, contingent or otherwise, of any Person
---------
directly or indirectly guaranteeing any indebtedness of any other Person and any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
indebtedness of such other Person (whether arising by virtue of partnership
arrangements, or by agreement to keep well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for purposes of assuring in any
other manner the obligee of such indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements for
---------
collection or deposit in the ordinary course of business. The term "guarantee"
---------
used as a verb has a corresponding meaning.
"Guaranteed Securities" has the meaning specified in Section 14.02.
---------------------
"Guarantor" or "Guarantors" means any Person or Persons, as applicable, if
--------- ----------
any, who may Guarantee an obligation or indebtedness of the Company pursuant to
the terms of this Indenture. The use of the term "Guarantor" or "Guarantors"
--------- ----------
shall only have an operative effect with respect to this Indenture to the extent
that there is a Guarantor or Guarantors pursuant to the terms of this Indenture.
"Holder" with respect to a Registered Security, means a Person in whose
------
name such Registered Security is registered in the Security Register and, with
respect to a Bearer Security (or any Temporary Global Bearer Security) or a
coupon, means the bearer thereof.
"Interest" when used with respect to a Global Security, has the meaning
--------
specified in Section 13.02.
"Interest Payment Date," when used with respect to any series of
---------------------
Securities, means the Stated Maturity of an installment of interest on such
Securities.
4
<PAGE>
"Legal Holiday" means any Saturday, Sunday or other legal holiday in the
-------------
State of New York or California.
"Maturity," when used with respect to any Security, means the date on which
--------
the principal of such Security (or any installment of principal) becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Maximum Net Worth" has the meaning specified in Section 14.09.
-----------------
"Net Worth" has the meaning specified in Section 14.09.
---------
"Obligations" has the meaning specified in Section 14.02.
-----------
"Obligor" means the Company or any Guarantor.
-------
"Obligor Guarantee" has the meaning specified in Section 14.02.
-----------------
"Officers' Certificate" means a certificate signed by the Chairman of the
---------------------
Board, the President, a Vice Chairman of the Board, or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Comptroller, an Assistant
Comptroller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee. Each such certificate shall contain the statements
set forth in Section 1.02, if applicable.
"Opinion of Counsel" means a written opinion of counsel, who may (except as
------------------
otherwise expressly provided in this Indenture) be an employee of the Company,
and who shall be reasonably acceptable to the Trustee. Each such opinion shall
contain the statements set forth in Section 1.02, if applicable.
"Outstanding," when used with respect to Securities or Securities of any
-----------
series, means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) such Securities in lieu of which other Securities have been
authenticated and delivered pursuant to Section 3.06 of this Indenture;
5
<PAGE>
provided, however, that in determining whether the Holders of the requisite
principal amount of such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, Securities owned by the
Company or any other Obligor upon the Securities or any Affiliate of the Company
or such other Obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other Obligor
upon the Securities or any Affiliate of the Company or such other Obligor.
"Paying Agent" means any Person authorized by the Company to pay the
------------
principal of, premium, if any, or interest on any Securities or any coupons
appertaining thereto on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
------
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof or any other entity.
"Place of Payment," when used with respect to the Securities of any series,
----------------
means the place or places where, subject to the provisions of Section 5.02, the
principal of (and premium, if any) and interest on the Securities of that series
(including Redemption Price) are payable as specified in accordance with Section
3.01.
"Predecessor Security" of any particular Security means every previous
--------------------
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"principal" means, with respect to any Security of any series, any
---------
principal, Redemption Price or Repayment Price.
"Principal Corporate Trust Office" means the principal office of the
--------------------------------
Trustee, at which at any particular time its corporate trust business shall be
principally administered, which office at the date of execution of this
instrument is at 450 West 33rd Street, New York, New York 10001, Attention:
Corporate Trust Department.
"Principal Paying Agent" means the Paying Agent, if any, designated as such
----------------------
by the Company pursuant to Section 3.01 of this Indenture.
"Process Agent" has the meaning specified in Section 1.14.
-------------
6
<PAGE>
"Redemption Date," when used with respect to any Security to be redeemed,
---------------
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
----------------
means the price specified in such Security or the related supplemental indenture
at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security in registered form established
-------------------
pursuant to Section 2.02 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Security on any
-------------------
Interest Payment Date means the date, if any, specified in such Security as the
"Regular Record Date".
-------------------
"Remaining Guarantor" has the meaning specified in Section 14.09.
-------------------
"Remarketing Entity," when used with respect to the Securities of any
------------------
series which are repayable at the option of the Holders thereof before their
Stated Maturity, means any Person designated by the Company to purchase any such
Securities.
"Repayment Date," when used with respect to any Security to be repaid upon
--------------
exercise of option for repayment by the Holder, means the date fixed for such
repayment pursuant to this Indenture.
"Repayment Price," when used with respect to any Security to be repaid upon
---------------
exercise of option for repayment by the Holder, means the price at which it is
to be repaid pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee, means any
-------------------
officer of the Trustee with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter,
any other officer of the Trustee to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means any subsidiary that has been designated as a
---------------------
Restricted Subsidiary pursuant to Section 3.01.
"Security" or "Securities" means any Security or Securities, as the case
-------- ----------
may be, authenticated and delivered under this Indenture; provided, however,
that, if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities," with respect to any such Person, shall mean Securities
----------
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" has the meaning specified in Section 3.05.
-----------------
"Security Registrar" has the meaning specified in Section 3.05.
------------------
7
<PAGE>
"Special Record Date" for the payment of any Defaulted Interest means the
-------------------
date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity" means, when used with respect to any Security, or any
---------------
installment of principal thereof or interest thereon, the date specified in such
Security as the fixed date on which the principal of such Security, or such
installment of principal or interest, is due and payable.
"Subsidiary" means, in respect of any Person, any corporation, association,
----------
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (i) such Person, (ii) such
Person and one or more Subsidiaries of such Person or (ii) one or more
Subsidiaries of such Person.
"Temporary Global Bearer Securities" has the meaning specified in Section
----------------------------------
3.04.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
------- -------
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
-------
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
-------
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" or "TIA" (except as herein otherwise expressly
------------------- ---
provided) means the Trust Indenture Act of 1939, as in force at the date as of
which this instrument was executed and, to the extent required by law, as
thereafter amended.
"United States" means the United States of America (including the States
-------------
and the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"United States Alien," except as otherwise provided in or pursuant to this
-------------------
Indenture, means any Person who, for United States Federal income tax purposes,
is a foreign corporation, a nonresident alien individual, a nonresident alien
fiduciary of a foreign estate or trust, or a foreign partnership, one or more of
the members of which is, for United States Federal income tax purposes, a
foreign corporation, a nonresident alien individual or a nonresident alien
fiduciary of a foreign estate or trust.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that at
------------------------
the time of determination shall have been designated an Unrestricted Subsidiary
by the Board of Directors in the manner provided in any supplemental indenture
hereto and (ii) any Subsidiary of an Unrestricted Subsidiary.
"vice president," when used with respect to the Company or the Trustee,
--------------
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
--------------
8
<PAGE>
SECTION 1.02. Compliance Certificates and Opinions. Upon any application
------------------------------------
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee, if the Trustee so
requests, an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except as otherwise expressly provided
in this Indenture) shall include:
(i) a statement that each individual 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 statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case where
--------------------------------------
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
9
<PAGE>
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders. (i) Any request, demand, authorization,
---------------
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders or Holders of any series may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing. If Securities
of a series are issuable in whole or in part as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may, alternatively,
be embodied in and evidenced by the record of Holders of Securities voting in
favor thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities duly called and held in accordance with the
provisions of Article Sixteen, or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
---
Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or the holding by any Person of a Security, shall be sufficient
for any purpose of this Indenture and (subject to Section 8.01) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 16.06.
(ii) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by or on behalf of any legal entity other than an individual,
such certificate or affidavit shall also constitute proof of the authority of
the Person executing the same. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(iii) The ownership of Registered Securities shall be proved by the
Security Register.
(iv) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank or other depositary, wherever situated, if such certificate shall
be deemed by the Trustee to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depositary, or exhibited to it,
the Bearer Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such
10
<PAGE>
ownership of any Bearer Security continues until (1) another certificate or
affidavit bearing a later date issued in respect of the same Bearer Security is
produced, or (2) such Bearer Security is produced to the Trustee by some other
Person, or (3) such Bearer Security is surrendered in exchange for a Registered
Security, or (4) such Bearer Security is no longer Outstanding.
(v) The fact and date of execution of any such instrument or writing, the
authority of the Person executing the same and the principal amount and serial
numbers of Bearer Securities held by the Person so executing such instrument or
writing and the date of holding the same may also be proved in any other manner
which the Trustee deems sufficient; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this Section.
(vi) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof, in respect of
any action taken, suffered or omitted by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
(vii) The Company may, in the circumstances permitted by the Trust
Indenture Act, set a record date for purposes of determining the identity of
Holders of Securities of any series entitled to give any request, demand,
authorization, direction, notice, consent, waiver or take any other Act, or to
vote or consent to any action by vote or consent authorized or permitted to be
given or taken by Holders of Securities of such series. If not set by the
Company prior to the first solicitation of a Holder of Securities of such Series
made by any Person in respect of any such action, or in the case of any such
vote, prior to such vote, such record date shall be the later of 30 days prior
to the first solicitation of such consent or the date of the most recent list of
Holders of such Securities furnished to the Trustee pursuant to Section 6.01
prior to such solicitation.
(viii) Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents, each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount. Any notice given or
action taken by a Holder or its agents with regard to different parts of such
principal amount pursuant to this paragraph shall have the same effect as if
given or taken by separate Holders of each such different part.
(ix) Without limiting the generality of the foregoing, unless otherwise
specified pursuant to Section 3.01 or pursuant to one or more indentures
supplemental hereto, a Holder, including a Depositary that is the Holder of a
Global Security, may make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken by
Holders, and a Depositary that is the Holder of a Global Security may provide
its proxy or proxies to the beneficial owners of interests in any such Global
Security through such Depositary's standing instructions and customary
practices.
11
<PAGE>
(x) The Company may fix a record date for the purpose of determining the
Persons who are beneficial owners of interests in any Global Security held by a
Depositary entitled under the procedures of such Depositary to make, give or
take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
SECTION 1.05. Notices, etc., to Trustee and Company. Any request, demand,
-------------------------------------
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:
(i) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Principal Corporate Trust Office; or
(ii) the Company or any Guarantor by any Holder or by the Trustee
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class, postage prepaid,
to the Company or any Guarantor, to the attention of General Counsel,
AgriBioTech, Inc., 3731 Wilshire Boulevard, 10th Floor, Los Angeles,
California 90010 or at any other address previously furnished in writing to
the Trustee by the Company.
SECTION 1.06. Notices to Holders; Waiver. Where this Indenture or any
--------------------------
Security provides for notice to Holders of any event:
(1) such notice shall be sufficiently given (unless otherwise herein
or in such Security expressly provided) if in writing and mailed, first
class, postage prepaid, to each Holder of Registered Securities affected by
such event, at his address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice.
(2) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of New York
and, if the Securities of such series are then listed on The International
Stock Exchange of the United Kingdom and the Republic of Ireland Limited
and such stock exchange shall so require, in London and, if the Securities
of such series are then listed on the Luxembourg Stock Exchange and such
stock exchange shall so require, in Luxembourg and, if the Securities of
such series are then listed on any other stock exchange and such stock
exchange shall so require, in any other required city outside the United
States, or, if not practicable, elsewhere in Europe on a business day in
such required city at least twice, the first such
12
<PAGE>
publication to be not earlier than the earliest date, and not later than
the latest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made directed
by the Company shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of Registered Securities shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice by publication to Holders of Bearer
Securities given as provided above.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be
directed by the Company shall constitute sufficient notice to such Holders for
every purpose hereunder. Neither the failure to give notice by publication to
Holders of Bearer Securities as provided above, nor any defect in any notice so
published, shall affect the sufficiency of any notice mailed to Holders of
Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 1.07. Language of Notices, etc. Any request, demand,
------------------------
authorization, direction, notice, consent, or waiver required or permitted under
this Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication.
SECTION 1.08. Conflict with Trust Indenture Act. If and to the extent
---------------------------------
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by, or with another provision (an "incorporated provision")
----------------------
included in this Indenture by operation of Sections 310 to 318, inclusive, of
the TIA, such imposed duties or incorporated provision shall control.
SECTION 1.09. Effect of Headings and Table of Contents. The Article and
----------------------------------------
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.10. Successors and Assigns. All covenants and agreements in
----------------------
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
13
<PAGE>
SECTION 1.11. Separability Clause. In case any provision in this
-------------------
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.12. Benefits of Indenture. Nothing in this Indenture or in the
---------------------
Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 1.13. Legal Holidays. In any case where any Interest Payment
--------------
Date, Stated Maturity, Repayment Date or Redemption Date of any Security or any
date on which any Defaulted Interest is proposed to be paid shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provisions
of the Securities or this Indenture) payment of the principal of, premium, if
any, or interest on any Securities need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the Interest Payment Date, Stated Maturity,
Repayment Date or Redemption Date or on the date on which Defaulted Interest is
proposed to be paid, and, if such payment is made, no interest shall accrue on
such payment for the period from and after any such Interest Payment Date,
Stated Maturity, Repayment Date or Redemption Date, or date on which Defaulted
Interest is proposed to be paid, as the case may be.
SECTION 1.14. Governing Law; Choice of Forum. (a) This Indenture and the
------------------------------
Securities shall be construed in accordance with and governed by the laws (other
than the conflict of laws rules except those set forth in New York General
Obligations Law (S) 5-1301) of the State of New York.
(b) EACH OBLIGOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW
YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR
ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN
RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE AND THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. EACH OBLIGOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THEY MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) Each Obligor hereby irrevocably appoints CSC Networks (the "Process
-------
Agent," which has consented thereto) with offices on the date hereof at 375
- -----
Hudson Street, New York, New York 10014, as Process Agent to receive for and on
behalf of such Obligor service of process in the County of New York relating to
this Indenture and the Notes. SERVICE OF
14
<PAGE>
PROCESS IN ANY SUIT, ACTION OR PROCEEDING AGAINST ANY OBLIGOR MAY BE MADE ON
SUCH PROCESS AGENT BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR
BY ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER APPLICABLE LAWS IN EFFECT IN
THE STATE OF NEW YORK, AND SUCH PROCESS AGENT SHALL BE AUTHORIZED AND DIRECTED
TO ACCEPT SUCH SERVICE FOR AND ON BEHALF OF SUCH OBLIGOR AND TO ADMIT SERVICE
WITH RESPECT THERETO. SUCH SERVICE UPON SUCH PROCESS AGENT SHALL BE DEEMED
EFFECTIVE PERSONAL SERVICE ON SUCH OBLIGOR, SUFFICIENT FOR PERSONAL
JURISDICTION, 10 DAYS AFTER MAILING, AND SHALL BE LEGAL AND BINDING UPON SUCH
OBLIGOR FOR ALL PURPOSES, NOTWITHSTANDING ANY FAILURE OF SUCH PROCESS AGENT TO
MAIL COPIES OF SUCH LEGAL PROCESS TO SUCH OBLIGOR OR ANY FAILURE ON THE PART OF
SUCH OBLIGOR TO RECEIVE THE SAME. Such Process Agent shall be deemed to have
been instructed to mail to such Obligor, upon service of process being made on
such Process Agent pursuant to this Section, a copy of the summons and complaint
or other legal process served upon it, by registered mail, return receipt
requested, at such Obligor's address set forth in this Indenture or any
supplement hereto, or to such other address as such Obligor may notify such
Process Agent in writing. Each Obligor shall at all times maintain a Process
Agent to receive service of process in the County of New York on its behalf with
respect to this Indenture and the Securities. If for any reason a Process Agent
or any successor thereto shall no longer serve as Process Agent or shall have
changed its address without notification thereof to the Trustee, such Obligor,
immediately after gaining knowledge thereof, irrevocably shall appoint a
substitute Process Agent in the County of New York and advise the Trustee
thereof.
ARTICLE TWO
SECURITY FORMS
--------------
SECTION 2.01. Forms Generally. All Securities and any related coupons
---------------
shall have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities or coupons, as evidenced by their execution
of the Securities or coupons.
The Trustee's certificates of authentication shall be in substantially the
form set forth in this Article.
Unless otherwise provided as contemplated by Section 3.01 with respect to
any series of Securities, the Securities of each series shall be issuable in
registered form without coupons. If so provided as contemplated by Section
3.01, the Securities of a series shall be issuable solely in bearer form, or in
both registered form and bearer form. Unless otherwise specified as
contemplated by Section 3.01, Securities in bearer form shall have interest
coupons attached.
15
<PAGE>
Definitive Securities, if any, and coupons shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 2.02. Form of Securities. Each Security and coupon shall be in
------------------
one of the forms approved from time to time by or pursuant to a Board
Resolution. Upon or prior to the delivery of a Security or coupons in any such
form to the Trustee for authentication, the Company shall deliver to the Trustee
the following:
(i) the Board Resolution by or pursuant to which such form of Security
or coupons has been approved, certified by the Secretary or an Assistant
Secretary of the Company;
(ii) the Officers' Certificate required by Section 3.01 of this
Indenture;
(iii) the Company Order required by Section 3.03 of this Indenture;
and
(iv) the Opinion of Counsel required by Section 3.03 of this
Indenture.
If temporary Securities of any series are issued in global form as
permitted by Section 3.04, the form thereof also shall be established as
provided in this Section 2.02.
SECTION 2.03. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
as Trustee,
by: _________________________________
Authorized Signatory
SECTION 2.04. Global Securities. If Securities of a series are issuable
-----------------
in whole or in part in global form, as contemplated by Section 3.01 and/or
Article Thirteen, then, notwithstanding clause (xi) of the second paragraph of
Section 3.01 and the provisions of Section 3.02, such Global Security shall
represent such of the outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges or increased to reflect the issuance of
additional uncertificated securities of such series. Any endorsement of a
Global Security to reflect the amount, or any increase or decrease in the
amount, of Outstanding Securities represented thereby shall be made in such
manner and
16
<PAGE>
upon instructions given by such Person or Persons as shall be specified therein
or in the Company Order to be delivered to the Trustee pursuant to Section 3.03
or Section 3.04.
Global Securities may be issued in either registered or bearer form and in
either temporary or permanent form.
ARTICLE THREE
THE SECURITIES
--------------
SECTION 3.01. Title and Terms. The aggregate principal amount of
---------------
Securities which may be authenticated and delivered under this Indenture is
unlimited. The Securities may be issued up to the aggregate principal amount of
Securities from time to time authorized by or pursuant to a Board Resolution.
The Securities may be issued in one or more series. All Securities of each
series issued under this Indenture shall in all respects be equally and ratably
entitled to the benefits hereof with respect to such series without preference,
priority or distinction on account of the actual time or times of the
authentication and delivery or Maturity of the Securities of such series. There
shall be established in or pursuant to a Board Resolution, and set forth in, or
determined in the manner provided in, an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series:
(i) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(ii) any limit upon the aggregate principal amount or aggregate
initial public offering price of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of that series pursuant to
this Article Three or Sections 4.07, 9.06 or 15.03);
(iii) the priority of payment, if any, of the Securities;
(iv) The price or prices (which may be expressed as a percentage of
the aggregate principal amount thereof) at which the Securities will be
issued;
(v) the date or dates on which the principal and premium, if any, of
the Securities of the series is payable;
(vi) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method or methods by which such rates may be
determined, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be payable,
the Regular Record Date for the interest payable on any Interest Payment
Date and the basis upon which interest shall be calculated if other than
that of a 360-day year consisting of twelve 30-day months;
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<PAGE>
(vii) the extent to which any of the Securities will be issuable in
temporary or permanent global form, and in such case, the Depositary for
such Global Security or Securities, the terms and conditions, if any, upon
which such Global Security may be exchanged in whole or in part for
definitive securities, and the manner in which any interest payable on a
temporary or permanent Global Security will be paid, whether or not
consistent with Section 3.04 or 3.05;
(viii) the office or offices or agency where, subject to Section 5.02,
the Securities may be presented for registration of transfer or exchange;
(ix) the place or places where, subject to the provisions of Section
5.02, the principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable;
(x) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
purchased or redeemed, in whole or in part, at the option of the Company;
(xi) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Registered Securities of the series
shall be issuable; and, if other than $5,000 or any integral multiple
thereof, the denominations in which Bearer Securities of the series shall
be issuable;
(xii) if the amount of payments of principal of (and premium, if any)
or any interest on Securities of the series may be determined with
reference to an index, the method or methods by which such amounts shall be
determined;
(xiii) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Securities of the
series are to be issuable with or without coupons or both and, in the case
of Bearer Securities, the date as of which such Bearer Securities shall be
dated if other than the date of original issuance of the first Security of
such series of like tenor and term to be issued;
(xiv) whether such Securities are convertible or exchangeable into
other debt or equity securities, and, if so, the terms and conditions upon
which such conversion or exchange will be effected, including the initial
conversion or exchange price or rate and any adjustments thereto, the
conversion or exchange period and other conversion or exchange provisions;
(xv) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company or the Guarantors, of the Securities
with respect to such Securities, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set forth
herein;
18
<PAGE>
(xvi) whether and on what terms the Securities are guaranteed and
which subsidiaries of the Company provide such guarantees; and
(xvii) whether, and under what conditions, additional amounts will be
payable to Holders of Securities of the series pursuant to Section 5.04;
(xviii) information with respect to book-entry procedures, if any;
(xix) any addition to or change in the Events of Default or covenants
of the Company and its Restricted Subsidiaries pertaining to the Securities
of the series;
(xx) whether and how any Subsidiary of the Company may be designated a
Restricted Subsidiary or an Unrestricted Subsidiary; and
(xxi) any other terms of the series.
All Securities of any one series and the coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution and set forth, or
determined in the manner provided, in such Officers' Certificate or in any such
indenture supplemental hereto. Securities of any particular series may be
issued at various times, with different dates on which the principal or any
installment of principal is payable, with different rates of interest, if any,
or different methods by which rates of interest may be determined, with
different dates on which such interest may be payable and with different
Redemption Dates or Repayment Dates.
SECTION 3.02. Denominations. The Securities of each series shall be
-------------
issuable in such form and denominations as shall be specified as contemplated by
Section 3.01. In the absence of any specification with respect to the
Securities of any series, the Registered Securities of each series shall be
issuable only as Securities without coupons in denominations of $1,000 and any
integral multiple thereof and the Bearer Securities of each series, if any,
shall be issuable with coupons and in denominations of $5,000 and any integral
multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
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Securities shall be executed on behalf of the Company by its Chairman of the
Board, its President, a Vice Chairman of the Board, or one of its Vice
Presidents and by its Secretary or one of its Assistant Secretaries. The
signatures of any or all of these officers on the Securities may be manual or
facsimile. Coupons shall bear the facsimile signature of the Company's Chairman
of the Board, its President, a Vice Chairman of the Board, one of its Vice
Presidents or the Treasurer.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
coupons appertaining thereto,
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<PAGE>
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee shall, upon receipt of the Company Order, authenticate and deliver such
Securities as in this Indenture provided and not otherwise; provided, however,
that, in connection with its original issuance, no Bearer Security shall be
mailed or otherwise delivered to any location in the United States; and provided
further that a Bearer Security may be delivered in connection with its original
issuance only if the Person entitled to receive such Bearer Security shall have
delivered to the Trustee, or such other Person as shall be specified in a
Temporary Global Bearer Security delivered pursuant to Section 3.04, a
Certificate in the form required by Section 3.11(i).
If the Company shall establish pursuant to Section 3.01 that the Securities
of a series are to be issued in whole or in part in the form of one or more
Global Securities in registered or permanent bearer form, then the Company shall
execute and the Trustee shall, in accordance with this Section and a Company
Order for the authentication and delivery of such Global Securities with respect
to such series, authenticate and deliver one or more Global Securities in
permanent or temporary form that (i) shall represent and shall be denominated in
an aggregate amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by one or more Global Securities,
(ii) shall be registered, if in registered form, in the name of the Depositary
for such Global Security or Securities or the nominee of such Depositary, and
(iii) shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 8.01) shall be
fully protected in relying upon, an Opinion of Counsel complying with Section
1.02 and stating that:
(i) the form of such Securities and coupons, if any, has been
established in conformity with the provisions of this Indenture;
(ii) the terms of such Securities and coupons, if any, or the manner
of determining such terms, have been established in conformity with the
provisions of this Indenture;
(iii) that such Securities and coupons, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium and other laws
of general applicability relating to or affecting the enforcement of
creditors' rights and to general principles of equity; and
(iv) such other matters as the Trustee may reasonably request.
Notwithstanding the provisions of Section 3.01 and of this Section 3.03, if
all Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Board Resolution or Officers' Certificate
otherwise required pursuant to Section 3.01 or the
20
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Company Order and Opinion of Counsel otherwise required pursuant to this Section
3.03 at or prior to the time of authentication of each Security of such series
if such documents are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued and such documents
reasonably contemplate the issuance of all Securities of such series; provided
that any subsequent request by the Company to the Trustee to authenticate
Securities of such series upon original issuance shall constitute a
representation and warranty by the Company that as of the date of such request,
the statements made in the Officers' Certificate or other certificates delivered
pursuant to Sections 1.02 and 3.01 shall be true and correct as if made on such
date.
A Company Order, Officers' Certificate or Board Resolution or supplemental
indenture delivered by the Company to the Trustee in the circumstances set forth
in the preceding paragraph may provide that Securities which are the subject
thereof will be authenticated and delivered by the Trustee or its agent on
original issue from time to time in the aggregate principal amount, if any,
established for such series pursuant to such procedures acceptable to the
Trustee as may be specified from time to time by Company Order upon telephonic,
electronic or written order of Persons designated in such Company Order,
Officers' Certificate, supplemental indenture or Board Resolution and that such
Persons are authorized to determine, consistent with such Company Order,
Officers' Certificate, supplemental indenture or Board Resolution, such terms
and conditions of said Securities as are specified in such Company Order,
Officers' Certificate, supplemental indenture or Board Resolution.
Each Registered Security shall be dated the date of its authentication; and
unless otherwise specified as contemplated by Section 3.01, each Bearer Security
and any Global Security shall be dated as of the date of original issuance of
such Security.
No Security or coupon appertaining thereto shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication substantially in the
form provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 3.06, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and canceled. Notwithstanding the
foregoing, if any Security or portion thereof shall have been duly authenticated
and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided
in Section 3.09 together with a written statement (which need not comply with
Section 1.02 and need not be accompanied by an Opinion of Counsel) stating that
such Security or portion thereof has never been issued and sold by the Company,
for all purposes of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 3.04. Temporary Securities. (a) Pending the preparation of
--------------------
definitive Securities of any series, the Company may execute, and upon Company
Order and the receipt of the certifications and opinions required under Sections
3.01 and 3.03, the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten,
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mimeographed or otherwise produced, in any authorized denominations,
substantially of the tenor of the definitive Securities in lieu of which they
are issued in registered form or, if authorized, in bearer form with one or more
coupons or without coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities. In the case of
any series which may be issuable as Bearer Securities, such temporary Securities
may be in global form, representing such of the Outstanding Securities of such
series as shall be specified therein (in such form, "Temporary Global Bearer
-----------------------
Securities").
- ----------
(b) Unless otherwise provided pursuant to Section 3.01:
(i) Except in the case of Temporary Global Bearer Securities, each of
which shall be exchanged in accordance with the provisions of the following
paragraphs, if temporary Securities of any series are issued, the Company
will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of
such series at the office or agency of the Company in a Place of Payment
for that series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series
(accompanied, if applicable, by all unmatured coupons and all matured
coupons in default appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of such series of authorized
denominations; provided, however, that no definitive Bearer Security shall
be delivered in exchange for a temporary Registered Security; and provided
further that a definitive Bearer Security shall be delivered in exchange
for a temporary Bearer Security only in compliance with the conditions set
forth in Section 3.03. Until so exchanged, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
(ii) If temporary Securities of any series are issued as Temporary
Global Bearer Securities, any such Temporary Global Bearer Security shall be
issued in accordance with Article Thirteen and shall, unless otherwise provided
in such Temporary Global Bearer Security, be delivered to the London office of a
depositary or common depositary (the "Common Depositary"), for the benefit of
-----------------
the operator of Euroclear and CEDEL S.A., for credit to the respective accounts
of the beneficial owners of such Securities (or to such other accounts as they
may direct). Upon receipt of written instructions (which need not comply with
Section 1.02) signed on behalf of the Company by any Person authorized to give
such instructions, the Trustee or any Authenticating Agent shall endorse such
Temporary Global Bearer Security to reflect the initial principal amount, or an
increase in the principal amount, of Outstanding Securities represented thereby.
Until such initial endorsement, such Temporary Global Bearer Security shall not
evidence any obligation of the Company. Such Temporary Global Bearer Security
shall at any time represent the aggregate principal amount of Outstanding
Securities
22
<PAGE>
theretofore endorsed thereon as provided above, subject to reduction to reflect
exchanges as described below.
(iii) Unless otherwise specified in such Temporary Global Bearer Security,
and subject to the second proviso in the following paragraph, the interest of a
beneficial owner of Securities of a series in a Temporary Global Bearer Security
shall be exchanged for definitive Securities (including a definitive Temporary
Global Bearer Security) of such series and of like tenor following the Global
Exchange Date when the account holder instructs Euroclear or CEDEL S.A., as the
case may be, to request such exchange on his behalf and delivers to Euroclear or
CEDEL S.A., as the case may be, a certificate in the form required by Section
3.11(i), dated no earlier than 15 days prior to the Global Exchange Date, copies
of which certificate shall be available from the offices of Euroclear and CEDEL
S.A., the Trustee, any Authenticating Agent appointed for such series of
Securities and each Paying Agent. Unless otherwise specified in such Temporary
Global Bearer Security, any such exchange shall be made free of charge to the
beneficial owners of such Temporary Global Bearer Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euroclear or CEDEL
S.A. Definitive Securities in bearer form to be delivered in exchange for any
portion of a Temporary Global Bearer Security shall be delivered only outside
the United States.
(iv) Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such Temporary Global
Bearer Security as the "Global Exchange Date" (the "Global Exchange Date"), the
-------------------- --------------------
Company shall deliver to the Trustee, or, if the Trustee appoints an
Authenticating Agent pursuant to Section 8.14, to any such Authenticating Agent,
definitive Securities in aggregate principal amount equal to the principal
amount of such Temporary Global Bearer Security, executed by the Company.
Unless otherwise specified as contemplated by Section 3.01, such definitive
Securities shall be in the form of Bearer Securities or Registered Securities,
or any combination thereof, as may be specified by the Company, the Trustee or
any such Authenticating Agent, as may be appropriate. On or after the Global
Exchange Date, such Global Security shall be surrendered by the Common
Depositary to the Trustee or any such Authenticating Agent, as the Company's
agent for such purpose, to be exchanged, in whole or from time to time in part,
for definitive Securities without charge and the Trustee or any such
Authenticating Agent shall authenticate and deliver, in exchange for each
portion of such Temporary Global Bearer Security, an equal aggregate principal
amount of definitive Securities of the same series, of authorized denominations
and of like tenor as the portion of such Temporary Global Bearer Security to be
exchanged, which, except as otherwise specified as contemplated by Section 3.01,
shall be in the form of Bearer Securities or Registered Securities, or any
combination thereof; provided, however, that, unless otherwise specified in such
Temporary Global Bearer Security, upon such presentation by the Common
Depositary, such Temporary Global Bearer Security is accompanied by a
certificate dated the Global Exchange Date or a subsequent date and signed by
Euroclear as to the portion of such
23
<PAGE>
Temporary Global Bearer Security held for its account then to be exchanged and a
certificate dated the Global Exchange Date or a subsequent date and signed by
CEDEL S.A., as to the portion of such Temporary Global Bearer Security held for
its account then to be exchanged, each in the form required by Section 3.11(ii);
and provided further that a definitive Bearer Security (including a definitive
Temporary Global Bearer Security) shall be delivered in exchange for a portion
of a Temporary Global Bearer Security only in compliance with the conditions set
forth in Section 3.03.
(v) Upon any exchange of a portion of any such Temporary Global Bearer
Security, such Temporary Global Bearer Security shall be endorsed by the
Trustee or any such Authenticating Agent, as the case may be, to reflect
the reduction of the principal amount evidenced thereby, whereupon its
remaining principal amount shall be reduced for all purposes by the amount
so exchanged. Until so exchanged in full, such Temporary Global Bearer
Security shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series authenticated and
delivered hereunder, except that, unless otherwise specified as
contemplated by Section 3.01, interest payable on such Temporary Global
Bearer Security on an Interest Payment Date for Securities of such series
occurring prior to the applicable Global Exchange Date shall be payable,
without interest, to Euroclear and CEDEL S.A. on or after such Interest
Payment Date upon delivery by Euroclear and CEDEL S.A. to the Trustee or
the Paying Agent, as the case may be, of a certificate or certificates in
the form required by Section 3.11(iii), for credit on or after such
Interest Payment Date to the respective accounts of the Persons who are the
beneficial owners of such Temporary Global Bearer Security on such Interest
Payment Date and who have each delivered to Euroclear or CEDEL S.A., as the
case may be, a certificate in the form required by Section 3.11(iv). Any
interest so received by Euroclear and CEDEL S.A. and not paid as herein
provided prior to the Global Exchange Date shall be returned to the Trustee
or Paying Agent, as the case may be, which, upon expiration of two years
after such Interest Payment Date, shall repay such interest to the Company
on Company Request in accordance with Section 5.03.
SECTION 3.05. Registration, Registration of Transfer and Exchange. With
---------------------------------------------------
respect to Registered Securities, the Company shall keep or cause to be kept a
register (sometimes referred to as the "Security Register") in which, subject to
-----------------
such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Registered Securities and the registration of transfers of
Registered Securities and the Company shall appoint a "Security Registrar," and
------------------
may appoint any "Co-Security Registrar" as may be appropriate, to keep the
---------------------
Security Register. Such Security Register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time. At all reasonable times the information contained in such Security
Register shall be available for inspection by the Trustee at the office of the
Security Registrar. In the event that any Registered Securities issued
hereunder have The City of New York as a Place of Payment, the Company shall
appoint either a Security Registrar or Co-Security Registrar located in The City
of New York.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained pursuant to Section
5.02 for such purpose in a Place
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<PAGE>
of Payment for such series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of such series of any
authorized denominations and of a like aggregate principal amount, tenor and
Stated Maturity.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of such series, of any authorized
denominations and of like aggregate principal amount, tenor and Stated Maturity,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Registered Securities may not be exchanged for Bearer Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of any such payment from the
Company; provided, however, that interest represented by coupons shall be
payable only upon presentation and surrender of those coupons at an office or
agency of a Paying Agent, maintained pursuant to Section 5.02 for such purpose,
located outside the United States. Notwithstanding the foregoing, in case a
Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series and like tenor after the
close of business at such office or agency on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business
at such office or agency on the related date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
25
<PAGE>
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be registered for transfer
or exchanged, no service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may (unless otherwise provided in
such Securities) require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges expressly provided in
this Indenture to be made at the Company's own expense or without expense or
without charge to the Holders.
Neither the Company, the Security Registrar nor any Co-Security Registrar
shall be required (i) to issue, register the transfer of or exchange any
Securities of any series during a period beginning at the opening of business 15
days before the day of selection of Securities of such series to be redeemed and
ending at the close of business on (A) if Securities of the series are issuable
only as Registered Securities, the day of the mailing of the relevant notice of
redemption of Registered Securities of such series so selected for redemption or
(B) if Securities of the series are issuable as Bearer Securities, the day of
the first publication of the relevant notice of redemption or, if Securities of
the series are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer or exchange of any Securities or portions thereof so
selected for redemption.
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange; none of the Company, the Trustee
nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchanges the Company would suffer adverse consequences under the United States
Federal income tax laws and regulations then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchanges unless and until the Trustee receives a subsequent Company Order to
the contrary. The Company shall deliver copies of such Company Orders to the
Security Registrar.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If (i)
------------------------------------------------
any mutilated Security or Security with a mutilated coupon is surrendered to the
Trustee or the Security Registrar, or if the Company, the Trustee and the
Security Registrar receive evidence to their satisfaction of the destruction,
loss or theft of any Security or coupon and (ii) there is delivered to the
Company, the Trustee and the Security Registrar such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company, the Trustee or the Security Registrar that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any such
mutilated, destroyed, lost or stolen Security or in exchange for the Security to
which a mutilated, destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not mutilated, destroyed, lost or stolen), a new Security of
the same series and Stated
26
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Maturity and of like tenor and principal amount, bearing a number not
contemporaneously outstanding and, if applicable, with coupons corresponding to
the coupons appertaining thereto; provided, however, that any new Bearer
Security will be delivered only in compliance with the conditions set forth in
Section 3.05.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security; provided, however, that payment of
principal of (and premium, if any) and any interest on Bearer Securities shall
be payable only at an office or agency located outside the United States, and,
in the case of interest, unless otherwise specified as contemplated by Section
3.01, only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant
to this Section in exchange for any mutilated security or in lieu of any
destroyed, lost or stolen Security, or in exchange for a Security with a
mutilated, destroyed, lost or stolen coupon, shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security and its coupons, if any, or the mutilated,
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of the same series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved. Unless
----------------------------------------------
otherwise provided as contemplated by Section 3.01, interest on any Registered
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall unless otherwise provided in such Security be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. Unless otherwise specified as contemplated by Section 3.01,
in case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency referred to in Section 3.05) on any Regular Record Date and before the
opening of business (at such office or agency) on the next succeeding Interest
Payment Date, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date and interest will not be payable on such
Interest Payment Date in respect of the Registered Security issued in exchange
for such Bearer Security, but will be payable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture. At the option of
the Company, payment of interest on any Registered Security may be made by check
pursuant to the terms of such Registered Security mailed to the address of the
Person entitled
27
<PAGE>
thereto as such address shall appear in the Security Register or by transfer to
an account maintained by the payee at a designated bank.
Any interest on any Registered Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
------------------
on the relevant Regular Record Date by virtue of his having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (i) or clause (ii) below.
(i) The Company may elect to make payments of any Defaulted Interest
to the Persons in whose names any such Registered Securities (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Registered Security and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 nor less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first
class, postage prepaid, to each Holder at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names such Registered
Securities (or their respective Predecessor Securities) are registered on
such Special Record Date and shall no longer be payable pursuant to the
following clause.
(ii) In case a Bearer Security of any series is surrendered at the
office or agency in a Place of Payment for such series in exchange for a
Registered Security of such series after the close of business at such
office or agency on any Special Record Date and before the opening of
business at such office or agency on the related proposed date of payment
of Defaulted Interest, such Bearer Security shall be surrendered without
the coupon relating to such proposed date for payment and Defaulted
Interest will not be payable on such proposed date for payment in respect
of the Registered Security issued in exchange for such Bearer Security, but
will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
(iii) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities with respect to which there
exists such default may be listed, and
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<PAGE>
upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to
this clause, such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of, or in exchange
for, or in lieu of, any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Subject to the limitations set forth in Section 5.02, the Holder of any coupon
appertaining to a Bearer Security shall be entitled to receive the interest
payable on such coupon upon presentation and surrender of such coupon on or
after the Interest Payment Date of such coupon at an office or agency maintained
for such purpose pursuant to Section 5.02.
SECTION 3.08. Persons Deemed Owners. Title to any Bearer Security, any
---------------------
coupons appertaining thereto and any Temporary Global Bearer Security or
permanent Global Security in bearer form shall pass by delivery.
Prior to due presentment for registration of transfer of any Registered
Security, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of, premium, if
any, and (subject to Section 3.07) interest on such Security, and for all
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Security or coupon be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Trustee, any Paying Agent, any Authenticating
Agent or the Security Registrar will have the responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interest of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interest, and they
shall be fully protected in acting or refraining from acting on any such
information provided by the Depositary.
SECTION 3.09. Cancellation. Unless otherwise provided with respect to a
------------
series of Securities, all Securities and coupons surrendered for payment,
registration of transfer, exchange, repayment or redemption shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered or surrendered directly to the Trustee for any such
purpose shall be promptly canceled by it in accordance with its customary
procedure. The Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly canceled by the Trustee. No
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Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this
Indenture or such Securities. All canceled Securities or coupons held by the
Trustee shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the Company.
SECTION 3.10. Computation of Interest. Interest on the Securities of each
-----------------------
series shall be computed as shall be specified as contemplated by Section 3.01.
SECTION 3.11. Form of Certification. Unless otherwise provided pursuant
---------------------
to Section 3.01:
(i) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification be given by a Person entitled to
receive a Bearer Security, such certification shall be provided
substantially in the form of Exhibit A hereto, with only such changes as
shall be approved by the Company.
(ii) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification be given by Euroclear and CEDEL
S.A. in connection with the exchange of a portion of a Temporary Global
Bearer Security, such certification shall be provided substantially in the
form of Exhibit B hereto, with only such changes as shall be approved by
the Company.
(iii) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by Euroclear and CEDEL
S.A. in connection with payment of interest with respect to a Temporary
Global Bearer Security prior to the related Global Exchange Date, such
certification shall be provided substantially in the form of Exhibit C
hereto, with only such changes as shall be approved by the Company.
(iv) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by a beneficial owner of
a portion of a Temporary Global Bearer Security in connection with payment
of interest with respect to a Temporary Global Bearer Security prior to the
related Global Exchange Date, such certification shall be provided
substantially in the form of Exhibit D hereto, with only such changes as
shall be approved by the Company.
ARTICLE FOUR
REDEMPTION OF SECURITIES
------------------------
SECTION 4.01. Applicability of Article. Securities of any series which
------------------------
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and, except as otherwise specified as contemplated by Section
3.01 for Securities of any series, in accordance with this Article.
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SECTION 4.02. Election To Redeem; Notice to Trustee. The election of the
-------------------------------------
Company to redeem any Securities redeemable at the option of the Company shall
be evidenced by an Officers' Certificate. In case of any redemption at the
election of the Company of less than all the Securities of any series, the
Company shall, at least 45 days (unless a shorter notice shall be satisfactory
to the Trustee) but not more than 60 days prior to the Redemption Date fixed by
the Company notify the Trustee and the Security Registrar of such Redemption
Date and of the principal amount of Securities of such series to be redeemed.
In the case of any redemption of Securities (i) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, or (ii) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 4.03. Selection by Security Registrar of Securities To Be
---------------------------------------------------
Redeemed. If less than all the Securities of any series with the same terms are
to be redeemed, the particular Securities to be redeemed shall be selected not
less than 30 nor more than 60 days prior to the Redemption Date by the Security
Registrar from the Outstanding Securities of such series having such terms not
previously called for redemption, by lot or such other method as the Security
Registrar shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal amount of Securities of
such series of a denomination equal to or larger than the minimum authorized
denomination for Securities of such series. Unless otherwise provided by the
terms of the Securities of any series so selected for partial redemption, the
portions of the principal of Securities of such series so selected for partial
redemption shall be, in the case of Registered Securities, equal to $1,000 or an
integral multiple thereof or, in the case of Bearer Securities, equal to $5,000
or an integral multiple thereof, and the principal amount of any such Security
which remains outstanding shall not be less than the minimum authorized
denomination for Securities of such series.
The Security Registrar shall promptly notify the Company, the Trustee and
the Co-Security Registrar, if any, in writing of the Securities selected for
redemption and, in the case of any Security selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal of such Security which has been or is to be redeemed.
SECTION 4.04. Notice of Redemption. Notice of redemption shall be given
--------------------
in the manner provided in Section 1.06, not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
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(iii) if less than all Outstanding Securities of any series having the
same terms are to be redeemed, the identification (and, in the case of
partial redemption, the respective principal amounts) of the particular
Securities to be redeemed;
(iv) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed, and that interest, if
any, thereon shall cease to accrue on and after said date;
(v) the place or places where such Securities (other than the Global
Securities), together in the case of Bearer Securities with all remaining
coupons appertaining thereto, if any, maturing after the Redemption Date,
are to be surrendered for payment of the Redemption Price; and
(vi) the CUSIP number or the Euroclear or the CEDEL reference numbers
(or any other number used by a Depositary to identify such Securities), if
any, of the Securities to be redeemed. A notice of redemption published as
contemplated by Section 1.06 need not identify particular Registered
Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, on Company Request, by the Trustee in
the name and at the expense of the Company.
SECTION 4.05. Deposit of Redemption Price. On or prior to the Business
---------------------------
Day preceding any Redemption Date, the Company shall deposit or cause to be
deposited with the Trustee or with a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided in Section
5.03) an amount of money sufficient to pay the Redemption Price of all the
Securities which are to be redeemed on that date; provided, however, that
deposits with respect to Bearer Securities shall be made with a Paying Agent or
Paying Agents located outside the United States except as otherwise provided in
Section 5.02, unless otherwise specified as contemplated by Section 3.01.
SECTION 4.06. Securities Payable on Redemption Date. Notice of redemption
-------------------------------------
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Securities shall cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Securities for redemption in accordance with said notice, such
Securities shall be paid by the Company at the Redemption Price; provided,
however, that installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01, only upon presentation and surrender
of coupons for such interest. Installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor
32
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Securities, registered as such on the close of business on the relevant Regular
Record Dates according to their terms and the provisions of Section 3.07.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that
interest represented by coupons shall be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by such Security, or as otherwise provided in
such Security.
SECTION 4.07. Securities Redeemed in Part. Any Security (other than a
---------------------------
Global Security) which is to be redeemed only in part shall be surrendered at
the office or agency of the Company in a Place of Payment therefor (with, if the
Company or the Security Registrar so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder of such Security or his attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series and Stated Maturity, containing
identical terms and conditions, of any authorized denominations as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. The records
of the Security Registrar and the Depositary shall reflect any partial
redemption of any Global Security.
ARTICLE FIVE
COVENANTS
---------
SECTION 5.01. Payment of Principal, Premium and Interest. The Company
------------------------------------------
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of, premium, if any, and interest on the
Securities of such series in accordance with the terms of the Securities of such
series, any coupons appertaining thereto and this Indenture. Unless otherwise
specified as contemplated by Section 3.01 with respect to any series of
Securities, any interest due on Bearer Securities on or before Maturity shall be
payable only outside the United States upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature.
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SECTION 5.02. Maintenance of Office or Agency. If Securities of a
-------------------------------
series are issuable as Registered Securities, the Company will maintain in each
Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and of any change in
the location, of such office or agency. Whether Securities of a series may be
issuable as Registered Securities or Bearer Securities, the Company will
maintain (A) in the Borough of Manhattan, The City of New York, an office or
agency where any Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served, (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Securities of that
series pursuant to Section 5.04); provided, however, that if the Securities of
that series are listed on The International Stock Exchange of the United Kingdom
and the Republic of Ireland Limited or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Securities of
that series in London or Luxembourg or any other required city located outside
the United States, as the case may be, so long as the Securities of that series
are listed on such exchange, and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for such series located outside the
United States an office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
in respect of any series of Securities or shall fail to furnish the Trustee with
the address thereof, such presentations, and surrenders of Securities of that
series may be made and notices and demands may be made or served at the
Principal Corporate Trust Office of the Trustee, except that Bearer Securities
of that series and the related coupons may be presented and surrendered for
payment (including payment of any additional amounts payable on Bearer
Securities of that series pursuant to Section 5.04) at the place specified for
the purpose as contemplated by Section 3.01, and the Company hereby appoints the
Trustee as its agent to receive such respective presentations, surrenders,
notices and demands.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal, premium or interest on Bearer Securities shall be made at any office
or agency of the Company in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank located
in the United States; provided, however, payment of principal of and any premium
34
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and interest (including additional amounts payable in respect thereof) on any
Bearer Security may be made at an office or agency of, and designated by, the
Company located in the United States if (but only if) payment of the full amount
of such principal, premium, interest or additional amounts in Dollars at all
offices outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or similar restrictions and the Trustee receives an Opinion of Counsel
that such payment within the United States is legal. Unless otherwise provided
as contemplated by Section 3.01 with respect to any series of Securities, at the
option of the Holder of any Bearer Security or related coupon, payment may be
made by check pursuant to the terms of such Bearer Security presented or mailed
to an address outside the United States or by transfer to an account maintained
by the payee with a bank located outside the United States.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all of such purposes specified above in this Section
and may constitute and appoint one or more Paying Agents for the payment of such
Securities, in one or more other cities, and may from time to time rescind such
designations and appointments; provided, however, that no such designation,
appointment or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency. Unless and until the
Company rescinds one or more such appointments, the Company hereby appoints: (i)
the Trustee, as its Paying Agent in The City of New York with respect to all
series of Securities having a Place of Payment in The City of New York.
SECTION 5.03. Money for Security Payments To Be Held in Trust. If
-----------------------------------------------
the Company shall at any time act as its own Paying Agent for any series of
Securities, it will, on or before each due date of the principal of, premium, if
any, or interest on any of the Securities of such series and any appurtenant
coupons, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal, premium or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to the Business Day preceding each
due date of the principal of, premium, if any, or interest on any Securities of
such series and any appurtenant coupons, deposit with a Paying Agent a sum
sufficient to pay the principal, premium or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for
any series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee subject to the provisions
of this Section, that such Paying Agent will:
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(i) hold all sums held by it for the payment of principal of, premium,
if any, or interest on Securities of such series and any appurtenant
coupons in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(ii) give the Trustee notice of any default by the Company (or any
other Obligor upon the Securities of such series) in the making of any
payment of principal, premium or interest on the Securities of such series
or any appurtenant coupons; and
(iii) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent, and, upon such payments by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, premium, if any, or
interest on any Security of any series or any appurtenant coupons and remaining
unclaimed for two years after such principal, premium or interest has become due
and payable shall be paid to the Company or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security or any coupon
appertaining thereto shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the written request and expense of the Company cause to be published
once, in an Authorized Newspaper in each Place of Payment, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 5.04. Additional Amounts. If the Securities of a series provide
------------------
for the payment of additional amounts, the Company will pay to the Holder of any
Security of any series or any coupon appertaining thereto additional amounts as
provided therein. Whenever in this Indenture there is mentioned, in any context,
the payment of the principal of (or premium, if any) or interest on, or in
respect of, any Security of any series or payment of any related coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of additional
amounts provided for in this Section to the extent that, in such context,
additional amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section and express mention of the payment of
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additional amounts (if applicable) in any provisions hereof shall not be
construed as excluding additional amounts in those provisions hereof where such
express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal (and
premium, if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest if there has been any change with
respect to the matters set forth in the Officers' Certificate provided for by
this Section 5.04, the Company will furnish the Trustee and the Company's
Principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of (and premium, if any) or interest on
the Securities of that series shall be made to Holders of Securities of that
series or any related coupons who are United States Aliens without withholding
for or on account of any tax, assessment or other governmental charge described
in the Securities of that series. If any such withholding shall be required,
then such Officers' Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of Securities or
coupons and the Company will pay to the Trustee or such Paying Agent the
additional amounts required by this Section. The Company covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or reasonable expense incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by
any of them in reliance on any Officers' Certificate furnished pursuant to this
Section.
SECTION 5.05. Statement as to Compliance. The Company will deliver to the
--------------------------
Trustee, within 120 days after the end of each fiscal year of the Company, an
Officers' Certificate (provided, however, that one of the signatories of which
shall be the Company's principal executive officer, principal financial officer
or principal accounting officer) stating, as to each signer thereof, that:
(i) a review of the activities of the Company during such year and of
performance under this Indenture and under the terms of the Securities has
been made under his supervision; and
(ii) to the best of his knowledge, based on such review, (a) the
Company has fulfilled all its obligations and complied with all conditions
and covenants under this Indenture and under the terms of the Securities
throughout such year, or, if there has been a default in the fulfillment of
any such obligation, condition or covenant specifying each such default
known to him and the nature and status thereof, and (b) no event has
occurred and is occurring which is, or after notice or lapse of time or
both would become, an Event of Default, or if such an event has occurred
and is continuing, specifying such event known to him and the nature and
status thereof.
SECTION 5.06. Maintenance of Corporate Existence, Rights and Franchises.
---------------------------------------------------------
So long as any of the Securities shall be Outstanding, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its and each of its Restricted Subsidiaries' corporate existence, rights
and franchises to carry on its business; provided, however, that
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nothing in this Section 5.06 shall (i) require the Company to preserve any such
right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company or such Restricted Subsidiary and that the loss thereof is not
disadvantageous in any material respect to the Holders, (ii) prevent any
consolidation or merger of the Company or any Restricted Subsidiary, or any
conveyance or transfer of all or substantially all of the property and assets of
any of its divisions or lines of business to any person, permitted by Article
Ten, or (iii) the liquidation or dissolution of the Company or any Restricted
Subsidiary after any conveyance or transfer of all or substantially all of the
property and assets of any of its divisions or lines of business to any person
permitted by Article Ten.
ARTICLE SIX
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
-------------------------------------------------
SECTION 6.01. Company To Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company will furnish or cause to be furnished to the Trustee (i)
semiannually, not more than 10 days after each March 1 and September 1, a list,
in such form as the Trustee may reasonably require, containing all the
information in the possession or control of the Company, any of its Paying
Agents (other than the Trustee) or the Security Registrar, if other than the
Trustee, as to the names and addresses of the Holders of Securities as of such
March 1 and September 1, and (ii) at such other times as the Trustee may request
in writing, within 30 days after receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to the
time such list is requested to be furnished; provided, however, that if and so
long as the Trustee is the Security Registrar for Securities of a series, no
such list need be furnished with respect to such series of Securities.
SECTION 6.02. Preservation of Information; Communications to Holders. (i)
------------------------------------------------------
The Trustee shall preserve, in as current a form as is reasonably practicable,
the names and addresses of Holders of Securities contained in the most recent
list furnished to the Trustee as provided in Section 6.01 and the names and
addresses of Holders of Securities received by the Trustee in its capacity as
the Security Registrar, if so acting. The Trustee may destroy any list
furnished to it as provided in Section 6.01 upon receipt of a new list so
furnished.
(ii) If three or more Holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to the
----------
Trustee reasonable proof that each such applicant has owned a Security of such
series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series or with the Holders
of all Securities with respect to their rights under this Indenture or under
such Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, at its
election, either
(a) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 6.02(i), or
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(b) inform such applicants as to the approximate number of Holders of
Securities of such series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 6.02(i), and as to the approximate cost
of mailing to such Holders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of a Security of such series or all Holders
of Securities, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
6.02(i), a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless, within five days
after such tender, the Trustee shall mail to such applicants and file with
the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the Holders of
Securities of such series or all Securities, as the case may be, or would
be in violation of applicable law. Such written statement shall specify the
basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such
Holders of Securities with reasonable promptness after the entry of such
order and the renewal of such tender; otherwise, the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(iii) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders of Securities in accordance with Section
6.02(ii), regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 6.02(ii).
SECTION 6.03. Reports by Trustee. (i) Within 60 days after May 1 of each
------------------
year commencing with the year 1997, the Trustee shall mail to each Holder
reports concerning the Trustee and its action under the Indenture as may be
required pursuant to the Trust Indenture Act if and to the extent and in the
manner provided pursuant thereto.
(ii) Reports pursuant to this Section shall be transmitted by mail (1) to
all Holders of Registered Securities, as their names and addresses appear in the
Security Register and (2) to such Holders of Bearer Securities as have, within
the two years preceding such transmission, filed their names and addresses with
the Trustee for that purpose, and (3) except in the cases of reports under
Section 313(b)(2) of the Trust Indenture Act, to each Holder of a Security of
any
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series whose name and address appear in the information preserved at the time by
the Trustee in accordance with Section 6.02(i).
(iii) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each securities exchange upon which any
Securities are listed, and, if required by law, rule or regulation, also with
the Commission. The Company will notify the Trustee when any Securities are
listed on any securities exchange.
SECTION 6.04. Reports by Company. The Company will:
------------------
(i) file with the Trustee, within 15 days after the Company is required to
file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company
is not required to file information, documents or reports pursuant to either of
said Sections, then it will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(ii) file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(iii) transmit by mail to Holders of Securities, in the manner and to the
extent provided in Section 6.03(ii), within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (i) and (ii) of this
Section as may be required by rules and regulations prescribed from time to time
by the Commission.
ARTICLE SEVEN
REMEDIES
--------
SECTION 7.01. Events of Default. "Event of Default," with respect to any
----------------- ----------------
series of Securities, wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless it is either inapplicable to a
particular series or it is specifically deleted or modified in the supplemental
indenture or Board
40
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Resolution under which such series of Securities is issued or in the form of
Security for such series:
(i) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(ii) default in the payment of any interest upon any Security of such
series as and when it become due and payable, and continuance of such
default for a period of 30 days; or
(iii) failure on the part of the Company or any Guarantor duly to
observe or perform any of the other covenants or agreements on its part in
the Securities of such series or in this Indenture and continuance of such
failure for a period of 60 days after the date on which written notice of
such failure, requiring the Company or any Guarantor to remedy the same and
stating that such notice is a "Notice of Default" hereunder, shall have
been given by registered mail to the Company or any Guarantor by the
Trustee, or to the Company, any Guarantor and the Trustee by the holders of
at least 25% in aggregate principal amount of the Securities of such series
at the time Outstanding; or
(iv) the entry by a court of competent jurisdiction of an order or
decree:
(A) under the Bankruptcy Code that is for relief against the
Company or any Guarantor in an involuntary case;
(B) under the Bankruptcy Code that appoints a receiver,
custodian, assignee, trustee, sequestrator (or other similar official)
pursuant to or within the meaning of the Bankruptcy Code, any law
relating to insolvency or similar law of the Company or any Guarantor
or for any substantial part of its property;
(C) under the Bankruptcy Code that orders the winding up or
liquidation of the Company or any Guarantor; or
(D) that grants any similar relief under any foreign laws, and,
in each case, the order or decree remains unstayed and in effect for
60 days.
(v) the commencement of a voluntary case pursuant to or within the
meaning of the Bankruptcy Code by the Company or any Guarantor, or the
consent by the Company or any Guarantor to the entry of an order for relief
against it in an involuntary case pursuant to or within the meaning of the
Bankruptcy Code, or the consent by the Company or any Guarantor to the
appointment of a receiver, custodian, assignee, trustee, sequestrator (or
other similar official) pursuant to or within the meaning of the Bankruptcy
Code, any law relating to insolvency or similar law, or the making of a
general assignment by the Company or any Guarantor for the benefit of its
creditors, or the taking of any comparable action under any foreign laws
relating to insolvency; or
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(vi) any other Event of Default provided with respect to Securities of
that series.
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment. If an
--------------------------------------------------
Event of Default (other than an Event of Default under clauses (iv) or (v) of
Section 7.01) with respect to any series of Securities for which there are
Securities Outstanding occurs and is continuing, then, and in every such case,
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series may declare the principal of all the
Securities of such series to be immediately due and payable, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration the same shall become immediately due and payable. If an Event
of Default under clause (iv) or (v) of Section 7.01 occurs, the principal of all
Securities 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.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences, and any
Event of Default giving rise to such declaration shall not be deemed to have
occurred, if:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(a) all overdue installments of interest on all Securities of
such series,
(b) the principal of and premium, if any, on any Securities of
such series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor by the terms of the Securities of such series,
(c) interest upon overdue installments of interest at the rate or
rates prescribed therefor by the terms of the Securities of such
series, and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, the Security Registrar, any Paying Agent, and their agents
and counsel and all other amounts due the Trustee under Section 8.07;
and
(ii) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 7.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 7.03. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee. The Company covenants that if:
- -------
(i) default is made in the payment of any installment of interest on
any Security of any series when such interest becomes due and payable and
such default continues for a period of 30 days; or
(ii) default is made in the payment of the principal of or premium, if
any, on any Security of any series at the Maturity thereof (including a
Redemption Date);
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of any such Security or coupon appertaining thereto, if any, the whole
amount then due and payable on any such Security or coupon for principal,
premium, if any, and interest, with interest upon the overdue principal and
premium, if any, and upon overdue installments of interest, at the rate or rates
prescribed therefor by the terms of any such Security; and, in addition thereto,
such further amount as shall be sufficient to cover the reasonable costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee under Section 8.07.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company, any Guarantor or any other Obligor upon such Securities and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company, any Guarantor or any other Obligor upon
such Securities, wherever situated.
If an Event of Default with respect to any series of Securities occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 7.04. Trustee May File Proofs of Claim. In case of the pendency
--------------------------------
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company, any Guarantor or any other Obligor upon the Securities or the
property of the Company, any Guarantor or of such other Obligor or their
creditors, the Trustee (irrespective of whether the principal of any Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company or any Guarantor for the payment of overdue principal, premium, if
any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
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(i) to file and prove a claim for the whole amount of principal,
premium, if any, and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due the Trustee under
Section 8.07) and of the Holders allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any 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 for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 8.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon 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 of a Security or
coupon in any such proceeding.
SECTION 7.05. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or under the Securities of
any series, or coupons (if any) appertaining thereto, may be prosecuted and
enforced by the Trustee without the possession of any of the Securities of such
series or coupons appertaining thereto or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and any other amounts due the Trustee under Section 8.07, be for the
ratable benefit of the Holders of the Securities of such series and coupons
appertaining thereto in respect of which such judgment has been recovered.
SECTION 7.06. Application of Money Collected. Any money collected by the
------------------------------
Trustee with respect to a series of Securities pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee, and,
in case of the distribution of such money on account of principal, premium, if
any, or interest, upon presentation of the Securities of such series or coupons
appertaining thereto, if any, or both, as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
8.07;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities of such series and coupons for principal, premium, if any, and
interest, in
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respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on Securities of such series and coupons, if any,
for principal, premium, if any, and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 7.07. Limitation on Suits. No Holder of any Security of any
-------------------
series or any related coupons shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to Securities of such series;
(ii) the Holders of not less than a 25% in principal amount of the
Outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(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) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders of Securities
of such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Securities of such series or to obtain or to seek
to obtain priority or preference over any other such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Securities of such series.
SECTION 7.08. Unconditional Right of Holders To Receive Principal, Premium
------------------------------------------------------------
and Interest. Notwithstanding any other provision in this Indenture, the Holder
- ------------
of any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, premium, if any, and
(subject to Section 3.07) interest on such Security or payment of such coupon on
the respective Stated Maturities expressed in such Security or coupon (or, in
the case of redemption or repayment, on the Redemption Date or Repayment Date)
and to institute suit for the enforcement of such payment, and such rights shall
not be impaired without the consent of such Holder, provided however that no
such suit may be instituted until after a default with respect to such payment
has continued for 30 days in accordance with Section 7.01(ii).
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SECTION 7.09. Restoration of Rights and Remedies. If the Trustee or any
----------------------------------
Holder of a Security or coupon 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 the Company, the Trustee and the
Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 7.10. Rights and Remedies Cumulative. Except as otherwise
------------------------------
provided with respect to the replacement or payment of mutilated, lost,
destroyed or stolen Securities or coupons in the last paragraph of Section 3.06,
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 7.11. Delay or Omission Not Waiver. No delay or omission of the
----------------------------
Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 7.12. Control by Holders. The Holders of a majority in principal
------------------
amount of the Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Securities of such series; provided that:
(i) such direction shall not be in conflict with any rule of law or
with this Indenture;
(ii) subject to the provisions of Section 8.01, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee, determine
that the proceeding so directed would involve the Trustee in personal
liability; and
(iii) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 7.13. Waiver of Past Defaults. The Holders of a majority in
-----------------------
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the
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Securities of such series waive any past default hereunder and its consequences,
except a default not theretofore cured:
(i) in the payment of the principal of, premium, if any, or interest
on any Security of such series; or
(ii) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of the Securities of such series under this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
SECTION 7.14. Undertaking for Costs. All parties to this Indenture agree,
---------------------
and each Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of any series,
or to any suit instituted by any Holder of Securities or coupons for the
enforcement of the payment of the principal of, premium, if any, or interest on
any Security or payment of any coupon on or after the respective Stated
Maturities expressed in such Security or coupon (or, in the case of redemption
or repayment, on or after the Redemption Date or Repayment Date).
SECTION 7.15. Waiver of Stay or Extension Laws. The Company covenants (to
--------------------------------
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
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ARTICLE EIGHT
The Trustee
-----------
SECTION 8.01. Certain Duties and Responsibilities. (i) Except during the
-----------------------------------
continuance of an Event of Default with respect to any series of Securities:
(a) the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture with respect to Securities of such
series, and no implied covenants or obligations shall be read into this
Indenture against the Trustee with respect to such series; and
(b) in the absence of bad faith on its part, the Trustee may conclusively
rely with respect to such series, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificate or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not they
conform as to form to the requirements of the Indenture.
(ii) In case an Event of Default with respect to any series of Securities
has occurred and is continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture with respect to such series, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(iii) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(a) this Subsection shall not be construed to limit the effect of
subsection (i) of this Section;
(b) the Trustee shall not be liable for any error or judgment made in good
faith by a Responsible Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the Outstanding
Securities of any series relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture with respect to
Securities of such series; and
(d) no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable
48
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grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(iv) The provisions of Section 315(a) and (d) of the Trust Indenture Act
are hereby excluded from this Indenture.
(v) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 8.02. Notice of Default. Within 45 days after the occurrence of
-----------------
any default hereunder with respect to Securities of any series, the Trustee
shall transmit by mail to all Holders of Registered Securities of such series
entitled to receive reports pursuant to Section 6.03(ii) notice of such default
hereunder known to the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of, premium, if any, or interest on any Security of such
series, or any related coupons the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a trust committee of directors and/or Responsible Officers of the Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders of Securities of such series. For the purpose of this Section, the
term "default," with respect to Securities of any series, means any event which
-------
is, or after notice or lapse of time, or both, would become, an Event of Default
with respect to Securities of such series.
SECTION 8.03. Certain Rights of Trustee. Except as otherwise provided in
-------------------------
Section 8.01:
(i) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, note or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(iii) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(iv) the Trustee may consult with counsel and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
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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 or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(vi) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, security or
other paper or document, but the Trustee, in its discretion, may make further
inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(vii) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(viii) the Trustee shall not be charged with knowledge of any default
(as defined in Section 8.02) or Event of Default (other than a default or Event
of Default under Sections 7.01(i) or (ii) if the Trustee is also the Paying
Agent with respect to the Security of the relevant series) unless either (1) a
Responsible Officer of the Trustee shall have actual knowledge of such default
or Event of Default or (2) written notice of such default or Event of Default
shall have been given to the Trustee by the Company, any Paying Agent or any
Holder; and
(ix) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture.
SECTION 8.04. Not Responsible for Recitals or Issuance of Securities. The
------------------------------------------------------
recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 8.05. May Hold Securities. The Trustee, any Authenticating Agent,
-------------------
any Paying Agent, the Security Registrar or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 8.08 and 8.13, may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
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SECTION 8.06. Money Held in Trust. Money held by the Trustee in trust
-------------------
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
SECTION 8.07. Compensation and Reimbursement. The Company agrees:
------------------------------
(i) to pay to the Trustee from time to time reasonable compensation for all
services rendered by it hereunder as the Company and the Trustee may agree to
from time to time in writing (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(ii) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(iii) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.
The obligations of the Company set forth in this Section 8.07 shall survive
the resignation or removal of any Trustee, the discharge of the Company's
obligations pursuant to Article Eleven of this Indenture and the termination of
this Indenture and the repayment of the Securities whether at the Stated
Maturity or otherwise.
SECTION 8.08. Disqualification; Conflicting Interests. If the Trustee has
---------------------------------------
or shall acquire a conflicting interest within the meaning of Section 310 of the
Trust Indenture Act, the Trustee shall either eliminate such conflicting
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest with respect to the Securities of any series by virtue of
being Trustee with respect to the Securities of any particular series of
Securities other than that series.
SECTION 8.09. Corporate Trustee Required; Eligibility. There shall at all
---------------------------------------
times be a Trustee with respect to each series of Securities hereunder which
shall be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $500,000,000, subject to supervision or examination by
Federal or State authority; provided, however, that if Section 310(a) of the
Trust Indenture Act or the rules and regulations of the Commission under the
Trust Indenture Act at
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any time permit a corporation organized and doing business under the laws of any
other jurisdiction to serve as trustee of an indenture qualified under the Trust
Indenture Act, this Section 8.09 shall be automatically deemed amended to permit
a corporation organized and doing business under the laws of any such
jurisdiction to serve as Trustee hereunder. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. Neither the Company nor any person directly or
indirectly controlling, controlled by or under common control with the Company
may serve as Trustee. If at any time the Trustee with respect to any series of
Securities shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 8.10. Resignation and Removal; Appointment of Successor. (i) No
-------------------------------------------------
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 8.11.
(ii) The Trustee may resign with respect to any series of Securities at any
time by giving written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the resigning
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(iii) The Trustee may be removed with respect to any series of
Securities at any time by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(iv) If at any time:
(a) the Trustee shall fail to comply with Section 8.08 with respect to
any series of Securities after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Security of such series
for at least six months; or
(b) the Trustee shall cease to be eligible under Section 8.09 with
respect to any series of Securities and shall fail to resign after written
request therefor by the Company or by any Holder of Securities of such
series; or
(c) the Trustee shall become incapable of acting with respect to any
series of Securities or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation;
52
<PAGE>
then, in any such case, (1) the Company by a Board Resolution may remove the
Trustee with respect to such series, or (2) subject to Section 7.14, any Holder
who has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to such series.
(v) If the Trustee shall resign, be removed or become incapable of acting
with respect to any series of Securities, or if a vacancy shall occur in the
office of Trustee with respect to any series of Securities for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 8.11. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to such series of Securities shall be
appointed by the Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee with respect to such series, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to such series and to that extent supersede the successor Trustee
appointed by the Company with respect to such series. If no successor Trustee
with respect to such series shall have been so appointed by the Company or the
Holders of Securities of such series and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.
(vi) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first- class mail, postage prepaid, to the
Holders of Registered Securities of such series as their names and addresses
appear in the Security Register and, if Securities of such series are issuable
as Bearer Securities, by publishing notice of such event once in an Authorized
Newspaper in each Place of Payment located outside the United States. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Principal Corporate Trust
Office.
SECTION 8.11. Acceptance of Appointment by Successor. (i) In the case of
--------------------------------------
the appointment hereunder of a successor Trustee with respect to any series of
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective with respect to all or any series as to which it
is resigning as Trustee, and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring
53
<PAGE>
Trustee with respect to all or any such series; but, on request of the Company
or such successor Trustee, such retiring Trustee shall upon payment of its
charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of such retiring Trustee with respect
to all or any such series; and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to all or any such series.
(ii) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (b)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(c) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates, subject nevertheless to its lien, if any,
provided for in Section 8.07.
(iii) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in Paragraph (i) or (ii) of this Section, as the case may be.
(iv) No successor Trustee with respect to a series of Securities shall
accept its appointment unless at the time of such acceptance such successor
Trustee shall be qualified and eligible with respect to such series under this
Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business
-----------------------------------------------------------
of Trustee. Any corporation into which the Trustee may be merged or converted
- ----------
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation
54
<PAGE>
to which the Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder; provided that such corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
In case any Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
SECTION 8.13. Preferential Collection of Claims Against Company. If and
-------------------------------------------------
when the Trustee shall be or become a creditor of the Company (or any other
Obligor upon the Securities), the Trustee shall be subject to the provisions of
Section 311 of the Trust Indenture Act regarding the collection of such claims
against the Company (or any such other Obligor). A Trustee that has resigned or
been removed shall be subject to and comply with said Section 311 to the extent
required thereby.
SECTION 8.14. Appointment of Authenticating Agents. The Trustee may
------------------------------------
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities. Such Authenticating Agent or Agents at the option of the Trustee
shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issuance, exchange, registration of transfer
or partial redemption thereof or pursuant to Section 3.06, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Whenever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication or the delivery of Securities to the Trustee for authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent, a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent and delivery of
Securities to the Authenticating Agent on behalf of the Trustee. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. Notwithstanding the foregoing, an Authenticating
Agent located outside the United States may be appointed by the Trustee if
previously approved in writing by the Company and if such Authenticating Agent
meets the minimum capitalization requirements of this Section 8.14. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
55
<PAGE>
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent; provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time (and
upon request by the Company shall) terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such termination,
or in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
"This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
_____________________, as Trustee,
by:
as Authenticating Agent
by:
Authorized Signatory"
ARTICLE NINE
SUPPLEMENTAL INDENTURES
-----------------------
SECTION 9.01. Supplemental Indentures Without Consent of Holders. Without
--------------------------------------------------
the consent of any Holder of any Securities or coupons, the Company, when
authorized by a Board
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Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(i) to evidence the succession of another corporation or Person to the
Company or any Guarantor, and the assumption by any such successor of the
covenants of the Company or any Guarantor, as the case may be, herein and in the
Securities contained; or
(ii) to evidence and provide for the acceptance of appointment by another
corporation as a successor Trustee hereunder with respect to one or more series
of Securities and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to Section 8.11; or
(iii) to add to the covenants of the Company or any Guarantor, for the
benefit of the Holders of Securities of all or any series of Securities or
coupons (and if such covenants are to be for the benefit of less than all series
of Securities or coupons, stating that such covenants are expressly being
included solely for the benefit of such series), or to surrender any right or
power herein conferred upon the Company or any Guarantor; or
(iv) to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under the Indenture;
provided that such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons; or
(v) to add any additional Events of Default with respect to all or any
series of the Securities (and, if such Event of Default is applicable to less
than all series of Securities, specifying the series to which such Event of
Default is applicable); or
(vi) to add to, change or eliminate any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal, to change
or eliminate any restrictions on the payment of principal of (or premium, if
any) or any interest on Bearer Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities, to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized denominations or to
permit or facilitate the issuance of Securities in uncertificated form; provided
any such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons; or
(vii) to add to, change or eliminate any of the provisions of this
Indenture; provided that any such addition, change or elimination (a) shall
become effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is adversely
affected by such addition, change or elimination and (b) shall not apply to any
Securities Outstanding; or
57
<PAGE>
(viii) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(ix) to evidence any changes to Section 8.09 as permitted by the terms
thereof; or
(x) to add to or change or eliminate any provision of this Indenture as
shall be necessary or desirable in accordance with any amendments to the Trust
Indenture Act; provided such action shall not adversely affect the interest of
Holders of Securities of any series or any related coupons.
SECTION 9.02. Supplemental Indentures with Consent of Holders. With the
-----------------------------------------------
consent of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of all series affected by such supplemental
indenture or indentures (acting as one class), by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of each such
series and any related coupons under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(i) change the Maturity of the principal of, or the Stated Maturity of any
installment of interest (or premium, if any) on, any Security, or reduce the
principal amount thereof or any premium thereon or the rate of interest thereon,
or change the obligation of the Company to pay additional amounts pursuant to
Section 5.04 (except as contemplated by Section 10.01(i) and permitted by
Section 9.01), or change the method of calculating interest thereon, or reduce
the minimum rate of interest thereon, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity thereof (or,
in the case of redemption or repayment, on or after the Redemption Date or
Repayment Date);
(ii) release any Guarantor from its Guarantee of any Obligation or
indebtedness of the Company pursuant to this Indenture or amend Article
Fourteen.
(iii) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or of certain
defaults hereunder and their consequences) provided for in this Indenture or
reduce the requirements of Section 16.04 for a quorum;
(iv) change any obligation of the Company to maintain an office or agency
in the places and for the purposes specified in Section 5.02; or
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<PAGE>
(v) make any Security payable in money other than that stated in such
Security; or
(vi) modify any of the provisions of this Section or Section 7.13, except
to increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series. It shall not be
necessary for any Act of Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such
Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or
------------------------------------
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
8.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
and complies with this Indenture. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee's own
rights, liabilities, duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution of
---------------------------------
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every supplemental
-----------------------------------
indenture executed pursuant to this Article shall conform to the requirements of
the TIA as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall, if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
so modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
---------------------------------------------
59
<PAGE>
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms.
--------------------------------------------------------------------
Neither the Company nor any Guarantor shall consolidate with or merge into any
other corporation or convey or transfer all or substantially all of their
respective assets to any single Person, unless:
(i) the Person formed by such consolidation or into which the Company or
any Guarantor, as applicable, is merged or the Person which acquires by
conveyance or transfer all or substantially all of the assets of the Company or
any Guarantor, as applicable, shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of, premium, if
any, and interest (including all additional amounts, if any, payable pursuant to
Section 5.04) on all the Securities and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(ii) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(iii) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance or transfer and such supplemental indenture comply with this Article
and that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 10.02. Successor Corporation Substituted. Upon any consolidation
---------------------------------
or merger, or any conveyance or transfer of all or substantially all of the
assets of the Company or any Guarantor in accordance with Section 10.01, the
successor Person formed by such consolidation or into which the Company or such
Guarantor is merged or to which such conveyance or transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company or such Guarantor under this Indenture with the same effect as if
such successor Person had been named as the Company or such Guarantor herein.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
--------------------------
SECTION 11.01. Satisfaction and Discharge of Indenture. This Indenture
---------------------------------------
shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided for
and rights to receive payments thereon and any right to receive additional
amounts, as provided in Section 5.04), and the Trustee, on receipt of a Company
Request and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when:
(i) either
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(a) all Securities theretofore authenticated and delivered (other than (1)
coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender is not
required or has not been waived as provided in Section 3.05, (2) coupons
appertaining to Bearer Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as provided in Section
4.07, (3) Securities and coupons which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.06, and (4) Securities
for whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 5.03) have been delivered to
the Trustee for cancellation; or
(b) all such Securities not theretofore delivered to the Trustee for
cancellation
(1) have become due and payable, or
(2) will become due and payable at their Maturity within one year, or
(3) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (b) (1), (2) or (3) above, has deposited or
caused to be deposited with the Trustee, as trust funds in trust for the
purpose, an amount sufficient to pay and discharge the entire indebtedness on
such Securities and coupons not theretofore delivered to the Trustee for
cancellation, for principal, premium, if any, and interest to the date of such
deposit (in the case of Securities which have become due and payable), or to the
Maturity or Redemption Date, as the case may be;
(ii) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(iii) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (i) of
this Section, the obligations of the Trustee under Section 11.02 and the last
paragraph of Section 5.03 shall survive.
SECTION 11.02. Application of Trust Money. Subject to the provisions of
--------------------------
the last paragraph of Section 5.03, all money deposited with the Trustee
pursuant to Section 11.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons, if any, and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), as the Trustee may
determine, to the
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Persons entitled thereto, of the principal, premium, if any, and interest for
whose payment such money has been deposited with the Trustee; but such money
need not be segregated from other funds except to the extent required by law.
SECTION 11.03. Reinstatement. If the Trustee or any Paying Agent is
-------------
unable to apply any money in accordance with Section 11.02 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 11.01 until such time as the Trustee or any Paying Agent is permitted to
apply all such money in accordance with Section 11.02.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
---------------------------------------------------------------
SECTION 12.01. Exemption from Individual Liability. No recourse under or
-----------------------------------
upon any obligation, covenant or agreement of this Indenture, or of any Security
or coupon, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation, either
directly or through the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations of the Company, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Company or
of any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or coupons or implied therefrom; and that any and all such personal liability,
either at common law or in equity or by constitution or statute, of, and any and
all such rights and claims against, every such incorporator, stockholder,
officer or director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or coupons or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issuance of the
Securities.
ARTICLE THIRTEEN
BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES
-------------------------------------------
SECTION 13.01. Applicability of Article. Securities which are issued as
------------------------
Global Securities shall be issued in accordance with this Article.
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SECTION 13.02. Book-Entry Provisions For Global Securities. (a) Global
-------------------------------------------
Securities may be deposited with, or on behalf of, a Depositary. Members of, or
participants in, the Depositary ("Agent Members") shall have no rights under
-------------
this Indenture with respect to any Global Security held on their behalf by the
Depositary or under the Global Security, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Security for all purposes whatsoever. Any Holder
of the Global Security shall, by acceptance of such Global Security, agree that
the transfers of beneficial interests in such Global Security may be effected
only through a book-entry system maintained by the Holder of such Global
Security (or its agent), and that ownership of a beneficial interest in the
Global Security shall be required to be reflected in a book-entry system.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or an agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
(b) Each Depositary designated pursuant to Section 3.01 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Exchange Act and any other applicable statute or regulation.
(c) Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for individual Securities represented
thereby, a Global Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary. Interests of beneficial owners in the Global Securities
(each an "Interest") may be transferred to one beneficial owner or to another
--------
Agent Member or exchanged for definitive Securities in accordance with the rules
and procedures of the Depositary and the provisions of this Indenture. In
addition, definitive Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in Global Securities if (i) the
Depositary for the Securities notifies the Company that the Depositary is
unwilling or unable to continue as Depositary for the Global Securities or is no
longer eligible to serve as Depositary pursuant to the terms of this Indenture
and a successor Depositary is not appointed by the Company within 90 days after
delivery of such notice; or (ii) the Company, at its sole discretion, notifies
the Trustee in writing that it elects to cause the issuance of definitive
Securities under this Indenture, then the Company shall execute, and the Trustee
shall, upon receipt of a Company Order in accordance with Section 3.03 hereof,
authenticate and deliver, definitive Securities in an aggregate principal amount
equal to the principal amount of the Global Securities in exchange for such
Global Securities. If specified by the Company pursuant to Section 3.01 with
respect to a series of Securities, the Depositary for such series of Securities
may surrender a Global Security for such series of Securities in exchange in
whole or in part for Securities of such series of like tenor and terms and
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in definitive form on such terms as are acceptable to the Company, the Trustee
and such Depositary.
(d) In connection with the transfer of any Interest from one beneficial
owner to another Agent Member not taking a definitive Security, but an Interest,
pursuant to paragraph (c), the Depositary shall reflect on its books and records
the date, the name of the transferor and transferee, and the amount of the
Interest transferred.
(e) In connection with the transfer of Global Securities as an entirety to
beneficial owners pursuant to the third sentence of paragraph (c) of this
Section, the Global Securities shall be deemed to be surrendered to the Trustee
for cancellation, and the Company shall execute and the Trustee upon receipt of
a Company Order for the authentication and delivery of definitive Securities of
such series shall authenticate and deliver, without service charge:
(i) to the Depositary or to each Person specified by such Depositary a
new Security or Securities of the same series, of like tenor and terms and
of any authorized denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Global Security; and
(ii) to such Depositary a new Global Security of like tenor and terms
and in an authorized denomination equal to the difference, if any, between
the principal amount of the surrendered Global Security and the aggregate
principal amount of Securities delivered to Holders thereof.
(f) The Holder of any Global Security may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Securities.
(g) Upon the exchange of Global Securities for Securities in definitive
form, such Global Securities shall be canceled by the Trustee. Registered
Securities issued in exchange for a Global Security pursuant to Section 3.05
shall be registered in such names and in such authorized denominations, and
delivered to such addresses, as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee in writing. The Trustee shall deliver such
Registered Securities to the Persons in whose names such Securities are so
registered or to the Depositary. The Trustee shall deliver Bearer Securities
issued in exchange for a Temporary Global Bearer Security pursuant to Section
3.05 to the Depositary or to the Persons at such addresses, and in such
authorized denominations, as the Depositary for such Temporary Global Bearer
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee in writing; provided, however, that no
definitive Bearer Security shall be delivered in exchange for a Temporary Global
Bearer Security other than in accordance with the provisions of Sections 3.03
and 3.04.
(h) In any exchange provided for in this Article Thirteen, the Company will
execute and the Trustee, pursuant to a Company Order, will authenticate and
deliver, Securities (i) in definitive registered form in authorized
denominations, if the Securities of such series are
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issuable as Registered Securities, (ii) in definitive bearer form in authorized
denominations, with coupons attached, if the Securities of such series are
issuable as Bearer Securities or (iii) as either Registered or Bearer
Securities, if the Securities of such series are issuable in either form;
provided, however, that no definitive Bearer Security shall be delivered in
exchange for a Temporary Global Bearer Security other than in accordance with
the provisions of Sections 3.03 and 3.04 and this Article Thirteen.
ARTICLE FOURTEEN
OBLIGOR GUARANTEE
-----------------
SECTION 14.01. Applicability of Article. The Obligor Guarantee of any
------------------------
Guarantor or Guarantors, if there be any, shall be effectuated in accordance
with this Article.
SECTION 14.02. Obligor Guarantee. The Guarantors unconditionally and
-----------------
jointly and severally guarantee and promise to pay to the Holders and the
Trustee (each a "Beneficiary"), on demand made at any time while an Event of
-----------
Default exists, in lawful money of the United States of America, any and all
Obligations of the Company from time to time owed to the Beneficiaries (the
"Obligor Guarantee"). The term "Obligations" means any and all present and
- ------------------ -----------
future obligations and liabilities of the Company of every type and description
to the Beneficiaries under this Indenture and the Securities of the series such
Guarantors have guaranteed (the "Guaranteed Securities"), whether for principal,
---------------------
premium (if any), interest, expenses, indemnities or other amounts, in each case
whether due or not due, absolute or contingent, voluntary or involuntary,
liquidated or unliquidated, determined or undetermined, now or hereafter
existing, renewed or restructured, whether or not from time to time decreased or
extinguished and later increased, created or incurred, whether or not arising
after the commencement of a proceeding under the Bankruptcy Code (including
post-petition interest) and whether or not allowed or allowable as a claim in
any such proceeding, and whether or not recovery of any such obligation or
liability may be barred by a statute of limitations or such obligation or
liability may otherwise be unenforceable. All Obligations shall be conclusively
presumed to have been created in reliance on the Obligor Guarantee. The Obligor
Guarantee is a continuing Guarantee of the Obligations and, except as otherwise
provided in this Indenture, may not be revoked and shall not otherwise terminate
unless and until any and all Obligations have been indefeasibly paid and
performed in full.
SECTION 14.03. Nature of Obligor Guarantee. The liability of each
---------------------------
Guarantor under the Obligor Guarantee is independent of and not in consideration
of or contingent upon the liability of the Company or any other Obligor, and a
separate action or actions may be brought and prosecuted against any Guarantor,
whether or not any action is brought or prosecuted against the Company or any
other Obligor or whether the Company or any other Obligor is joined in any such
action or actions. The Obligor Guarantee given by each Guarantor shall be
construed as a continuing, absolute and unconditional Guarantee of payment (and
not merely of collection) without regard to:
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(a) the legality, validity or enforceability of the Securities or this
Indenture, any of the Obligations, any security or Obligor Guarantee given by
any other Guarantor;
(b) any defense (other than payment), set-off or counterclaim that may at
any time be available to the Company or any other Obligor against, and any right
of setoff at any time held by, any Beneficiary; or
(c) any other circumstance whatsoever (with or without notice to or
knowledge of any Guarantor or any other Obligor), whether or not similar to any
of the foregoing, that constitutes, or might be construed to constitute, an
equitable or legal discharge of the Company or any other Obligor, in bankruptcy
or in any other instance.
Any payment by any Obligor or other circumstance that operates to toll any
statute of limitations applicable to such Obligor shall also operate to toll the
statute of limitations applicable to each Guarantor.
SECTION 14.04. Authorization. Each Guarantor authorizes each Beneficiary,
-------------
without notice to or further assent by such Guarantor, and without affecting any
Guarantor's liability hereunder (regardless of whether any subrogation or
similar right that such Guarantor may have or any other right or remedy of such
Guarantor is extinguished or impaired), from time to time to do any or all of
the following:
(a) permit the Company to increase or create Obligations, or terminate,
release, compromise, subordinate, extend, accelerate or otherwise change the
amount or time, manner or place of payment of, or rescind any demand for payment
or acceleration of, the Obligations or any part thereof, consent or enter into
supplemental indentures or otherwise amend the terms and conditions of the
Guaranteed Securities or this Indenture or any provision thereof;
(b) take and hold any collateral from the Company or any other Person,
perfect or refrain from perfecting a lien on any collateral, and exchange,
enforce, subordinate, release (whether intentionally or unintentionally), or
take or fail to take any other action in respect of, any collateral or lien or
any part thereof;
(c) exercise in such manner and order as it elects in its sole discretion,
fail to exercise, waive, suspend, terminate or suffer expiration of, any of the
remedies or rights of such Beneficiary against the Company or any other Obligor
in respect of any Obligations or any security;
(d) release, add or settle with any Obligor in respect of the Obligor
Guarantee or the Obligations;
(e) accept partial payments on the Obligations and apply any and all
payments or recoveries from such Obligor to such of the Obligations as any
Beneficiary may elect in its sole discretion, whether or not such Obligations
are secured or guaranteed;
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(f) refund at any time, at such Beneficiary's sole discretion, any payments
or recoveries received by such Beneficiary in respect of any Obligations; and
(g) otherwise deal with the Company or any other Obligor as such
Beneficiary may elect in its sole discretion.
SECTION 14.05. Certain Waivers. Each Guarantor waives:_
---------------
(a) the right to require the Beneficiaries to proceed against the Company
or any other Obligor, to proceed against or exhaust any collateral or to pursue
any other remedy in any Beneficiary's power whatsoever and the right to have the
property of the Company or any other Obligor first applied to the discharge of
the Obligations;
(b) all rights and benefits under applicable law purporting to reduce a
Guarantor's obligations in proportion to the obligation of the principal or
providing that the obligation of a surety or Guarantor must neither be larger
nor in other respects more burdensome than that of the principal;
(c) the benefit of any statute of limitations affecting the Obligations or
any Guarantor's liability hereunder;
(d) any requirement of marshaling or any other principle of election of
remedies;
(e) any right to assert against any Beneficiary any defense (legal or
equitable), set-off, counterclaim and other right that any Guarantor may now or
any time hereafter have against the Company or any other Obligor;
(f) presentment, demand for payment or performance (including diligence in
making demands hereunder), notice of dishonor or nonperformance, protest,
acceptance and notice of acceptance of the Obligor Guarantee, and, except to the
extent expressly required by the Guaranteed Securities or this Indenture, all
other notices of any kind, including (i) notice of any action taken or omitted
by the Beneficiaries in reliance hereon, (ii) notice of any default by the
Company or any other Obligor, (iii) notice that any portion of the Obligations
is due, (iv) notice of any action against the Company or any other Obligor, or
any enforcement or other action with respect to any collateral, or the assertion
of any right of any Beneficiary hereunder; and
(g) all defenses that at any time may be available to any Guarantor by
virtue of any valuation, stay, moratorium or other law now or hereafter in
effect.
SECTION 14.06. No Subrogation; Certain Agreements. (a) EACH GUARANTOR
----------------------------------
WAIVES ANY AND ALL RIGHTS OF SUBROGATION, INDEMNITY OR REIMBURSEMENT, AND ANY
AND ALL BENEFITS OF AND RIGHTS TO ENFORCE ANY POWER, RIGHT OR REMEDY THAT ANY
BENEFICIARY MAY NOW OR HEREAFTER HAVE IN RESPECT OF THE OBLIGATIONS AGAINST THE
COMPANY OR ANY OTHER OBLIGOR (OTHER THAN RIGHTS OF CONTRIBUTION FROM OTHER
GUARANTORS), AND ANY AND ALL OTHER RIGHTS AND CLAIMS (AS
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DEFINED IN THE BANKRUPTCY CODE) ANY GUARANTOR MAY HAVE AGAINST THE COMPANY,
UNDER APPLICABLE LAW OR OTHERWISE, AT LAW OR IN EQUITY, BY REASON OF ANY PAYMENT
UNDER THE OBLIGOR GUARANTEE, UNLESS AND UNTIL THE OBLIGATIONS SHALL HAVE BEEN
PAID IN FULL.
(b) Each Guarantor assumes the responsibility for being and keeping itself
informed of the financial condition of each other Obligor and of all other
circumstances bearing upon the risk of nonpayment of the Obligations or the
Obligor Guarantee of any other Guarantor that diligent inquiry would reveal, and
agrees that the Beneficiaries shall have no duty to advise any Guarantor of
information regarding such condition or any such circumstances.
SECTION 14.07. Bankruptcy No Discharge. (a) Without limiting Section
-----------------------
14.03, the Obligor Guarantee shall not be discharged or otherwise affected by
any bankruptcy, reorganization or similar proceeding commenced by or against the
Company or any other Obligor, including (i) any discharge of, or bar or stay
against collecting, all or any part of the Obligations in or as a result of any
such proceeding, whether or not assented to by any Beneficiary, (ii) any
disallowance of all or any portion of any Beneficiary's claim for repayment of
the Obligations, (iii) any use of cash or other collateral in any such
proceeding, (iv) any agreement or stipulation as to adequate protection in any
such proceeding, (v) any failure by any Beneficiary to file or enforce a claim
against the Company or any other Obligor or its estate in any bankruptcy or
reorganization case, (vi) any amendment, modification, stay or cure of any
Beneficiary's rights that may occur in any such proceeding, (vii) any election
by any Beneficiary under Section 1112(b)(2) of the Bankruptcy Code, or (viii)
any borrowing or grant of a lien under Section 364 of the Bankruptcy Code. Each
Guarantor understands and acknowledges that by virtue of the Obligor Guarantee,
it has specifically assumed any and all risks of any such proceeding with
respect to the Company and each other Obligor.
(b) Notwithstanding anything in this Article Fourteen to the contrary, any
Event of Default under the Guaranteed Securities or Section 7.01 of this
Indenture shall render all Obligations automatically due and payable for
purposes of the Obligor Guarantee, without demand on the part of the Trustee or
any Holder.
(c) Notwithstanding anything to the contrary herein contained, the Obligor
Guarantee shall continue to be effective or be reinstated, as the case may be,
if at any time any payment, or any part thereof, of any or all of the
Obligations is rescinded, invalidated, declared to be fraudulent or preferential
or otherwise required to be restored or returned by any Beneficiary in
connection with any bankruptcy, reorganization or similar proceeding involving
the Company, any other Obligor or otherwise or if any Beneficiary elects to
return any such payment or proceeds or any part thereof in its sole discretion,
all as though such payment had not been made or such proceeds not been received.
SECTION 14.08. Severability of Void Obligations under Obligor Guarantee.
--------------------------------------------------------
The obligations of any Guarantor hereunder shall be limited to the maximum
amount that would not render its obligations hereunder subject to avoidance
under Section 548 of the Bankruptcy Code or any applicable provisions of
comparable state law.
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SECTION 14.09. Right of Contribution. In order to provide for just and
---------------------
equitable contribution among the Guarantors in connection with the Obligor
Guarantee, the Guarantors have agreed among themselves that if any Guarantor
satisfies some or all of the Obligations (a "Funding Guarantor"), the Funding
-----------------
Guarantor shall be entitled to contribution from the other Guarantors that have
positive Maximum Net Worth (as defined below) for all payments made by the
Funding Guarantor in satisfying the Obligations, so that each Guarantor that
remains obligated under the Obligor Guarantee at the time that a Funding
Guarantor makes such payment (a "Remaining Guarantor") and has a positive
-------------------
Maximum Net Worth shall bear a portion of such payment equal to the percentage
that such Remaining Guarantor's Maximum Net Worth bears to the aggregate Maximum
Net Worth of all Remaining Guarantors that have positive Maximum Net Worth.
As used herein, "Net Worth" means, with respect to any Guarantor, the
---------
amount, as of any date of calculation, by which the sum of a Person's assets
(including subrogation, indemnity, contribution, reimbursement and similar
rights that such Guarantor may have), determined on the basis of a "fair
----
valuation" or their "fair salable value" (whichever is the applicable test under
- --------- ------------------
Section 548 and other relevant provisions of the Bankruptcy Code and the
relevant state fraudulent conveyance or transfer laws) is greater than the
amount that will be required to pay all of such Person's debts, in each case
matured or unmatured, contingent or otherwise, as of the date of calculation,
but excluding liabilities arising under the Obligor Guarantee and excluding, to
the maximum extent permitted by applicable law with the objective of avoiding
rendering such Person insolvent, liabilities subordinated to the Obligations
arising out of loans or advances made to such Person by any other Person.
"Maximum Net Worth" means, with respect to any Guarantor, the greatest of the
- ------------------
Net Worths calculated as of the following dates: (A) the date on which the
Guarantor becomes a Guarantor hereunder, (B) the date on which such Guarantor
expressly reaffirms the Obligor Guarantee, (C) the date on which demand for
payment is made on such Guarantor hereunder, (D) the date on which payment is
made by such Guarantor hereunder or (E) the date on which any judgment, order or
decree is entered requiring such Guarantor to make payment hereunder or in
respect hereof. The meaning of the terms "fair valuation" and "fair salable
-------------- ------------
value" and the calculation of assets and liabilities shall be determined and
- -----
made in accordance with the relevant provisions of the Bankruptcy Code and
applicable state fraudulent conveyance or transfer laws.
ARTICLE FIFTEEN
REPAYMENT AT THE OPTION OF HOLDERS
----------------------------------
SECTION 15.01. Applicability of Article. Securities of any series which
------------------------
are repayable at the option of the Holders thereof before their Stated Maturity
shall be repaid in accordance with their terms and (except as otherwise
specified pursuant to Section 3.01 for Securities of such series) in accordance
with this Article.
SECTION 15.02. Repayment of Securities. Each Security which is subject to
-----------------------
repayment in whole or in part at the option of the Holder thereof on a Repayment
Date shall be repaid at the
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applicable Repayment Price together with interest accrued to such Repayment Date
as specified pursuant to Section 3.01.
SECTION 15.03. Exercise of Option, Notice. Each Holder desiring to
--------------------------
exercise such Holder's option for repayment shall, as conditions to such
repayment, surrender the Security to be repaid in whole or in part together with
written notice of the exercise of such option at any office or agency of the
Company in a Place of Payment, not less than 30 nor more than 45 days prior to
the Repayment Date; provided, however, that surrender of Bearer Securities
together with written notice of exercise of such option shall be made at an
office or agency located outside the United States except as otherwise provided
in Section 5.02. Such notice, which shall be irrevocable, shall specify the
principal amount of such Security to be repaid, which shall be equal to the
minimum authorized denomination for such Security or an integral multiple
thereof, and shall identify the Security to be repaid and, in the case of a
partial repayment of the Security, shall specify the denomination or
denominations of the Security or Securities of the same series to be issued to
the Holder for the portion of the principal of the Security surrendered which is
not to be repaid.
If any Bearer Security surrendered for repayment shall not be accompanied
by all unmatured coupons and all matured coupons in default, such Bearer
Security may be paid after deducting from the Repayment Price an amount equal to
the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Repayment
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only at an office or agency located outside the United States except
as otherwise provided in Section 5.02.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Registered Security so surrendered a
new Registered Security or Securities of the same series and tenor, of any
authorized denomination specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Registered
Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Bearer Security so surrendered a new
Registered Security or Securities or new Bearer Security or Securities (and all
appurtenant unmatured coupons and matured coupons in default) or any combination
thereof of the same series and tenor of any authorized denomination or
denominations specified in the foregoing notice, in an aggregate principal
amount equal to any portion of the principal of the Security so surrendered
which is not to be repaid; provided, however, that the issuance of a Registered
Security therefor shall be subject to applicable laws and regulations, including
provisions of the United States Federal income tax laws and regulations in
effect at the time of the exchange; neither the Company, the Trustee nor the
Security Registrar shall issue Registered Securities for Bearer Securities if it
has received an Opinion of Counsel that as a result of such issuance the Company
would suffer
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adverse consequences under the United States Federal income tax
laws then in effect and the Company has delivered to the Trustee a Company Order
directing the Trustee not to make such issuances thereafter unless and until the
Trustee receives a subsequent Company Order to the contrary. The Company shall
deliver copies of such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the repayment of Securities shall relate, in the case
of any Security repaid or to be repaid only in part, to the portion of the
principal of such Security which has been or is to be repaid.
SECTION 15.04. Election of Repayment by Remarketing Entities. The Company
---------------------------------------------
may elect, with respect to Securities of any series which are repayable at the
option of the Holders thereof before their Stated Maturity, at any time prior to
any Repayment Date to designate one or more Remarketing Entities to purchase, at
a price equal to the Repayment Price, Securities of such series from the Holders
thereof who give notice and surrender their Securities in accordance with
Section 15.03.
SECTION 15.05. Securities Payable on the Repayment Date. Notice of
----------------------------------------
exercise of the option of repayment having been given and the Securities so to
be repaid having been surrendered as aforesaid, such Securities shall, unless
purchased in accordance with Section 15.04, on the Repayment Date become due and
payable at the price therein specified and from and after the Repayment Date
such Securities shall cease to bear interest and shall be paid on the Repayment
Date, and the coupons for such interest appertaining to Bearer Securities so to
be repaid, except to the extent provided above, shall be void, unless the
Company shall default in the payment of such price, in which case the Company
shall continue to be obligated for the principal amount of such Securities and
shall be obligated to pay interest on such principal amount at the rate
prescribed therefor by such Securities from time to time until payment in full
of such principal amount.
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
---------------------------------
SECTION 16.01. Purposes for Which Meetings May Be Called. A meeting of
-----------------------------------------
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other Act provided by this
Indenture to be made, given or taken by Holders of Securities of such series.
SECTION 16.02. Call, Notice and Place of Meetings. (i) The Trustee may at
----------------------------------
any time call a meeting of Holders of Securities of any series issuable as
Bearer Securities for any purpose specified in Section 16.01, to be held at such
time and at such place in the Borough of Manhattan, The City of New York, or in
London as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
given, in
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the manner provided in Section 1.06, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(ii) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding Securities of
any series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 16.01, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the City
of New York or in London for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in subsection (i) of this Section.
SECTION 16.03. Persons Entitled To Vote at Meetings. To be entitled to
------------------------------------
vote at any meeting of Holders of Securities of any series, a Person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders.
The only Persons who shall be entitled to be present or to speak at any meeting
of Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 16.04. Quorum; Action. The Persons entitled to vote a majority in
--------------
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; provided, however,
that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by the Holders of a
greater percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such greater percentage in principal amount
of the Outstanding Securities of such series shall constitute a quorum; provided
further, however, that if any action is to be taken at such meeting with respect
to any request, demand, authorization, direction, notice, consent, waiver or
other Act which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority in
principal amount of the Outstanding Securities of a series, the Holders of such
specified percentage in principal amount of the Outstanding Securities of that
series shall constitute a quorum. In the absence of a quorum within 30 minutes
of the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series, be dissolved. In the
absence of a quorum in any other case the meeting may be adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairperson of the meeting prior
to the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 16.02(i), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall
72
<PAGE>
state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the provisos to Section 9.02, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of the series;
provided, however, that, except as limited by the provisos to Section 9.02, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of a greater percentage in principal amount
of the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of such greater percentage in
principal amount of the Outstanding Securities of that series; and provided
further that, except as limited by the provisos to Section 9.02, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a majority
in principal amount of the Outstanding Securities of a series may be adopted at
a meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 16.05. Determination of Voting Rights; Conduct and Adjournment of
----------------------------------------------------------
Meetings. (a) Notwithstanding any other provisions of this Indenture, the
- --------
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
1.04 and the appointment of any proxy shall be proved in the manner specified in
Section 1.04 or, in the case of Bearer Securities, by having the signature of
the person executing the proxy witnessed or guaranteed by any trust company,
bank or banker authorized by Section 1.04 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairperson of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 16.02(ii), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairperson. A
permanent chairperson and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
73
<PAGE>
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of Securities of such
series held or represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairperson of the meeting not to be Outstanding.
The chairperson of the meeting shall have no right to vote, except as a Holder
of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 16.02 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
SECTION 16.06. Counting Votes and Recording Action of Meetings. The vote
-----------------------------------------------
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Securities of such series or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding Securities of
such series held or represented by them. The permanent chairperson of the
meeting shall appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record, at least in triplicate, of the proceedings
of each meeting of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 16.02 and, if applicable, Section 16.04. Each copy shall be
signed and verified by the affidavits of the permanent chairperson and secretary
of the meeting and one such copy shall be delivered to the Company, and another
to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE SEVENTEEN
MISCELLANEOUS
-------------
SECTION 17.01. Counterparts. This Indenture may be executed in any number
------------
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
74
<PAGE>
The Bank hereby accepts the trusts in this Indenture declared and
provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
AGRIBIOTECH, INC.
by: .............................
Name:
Title:
[CORPORATE SEAL]
________________________, as Trustee,
by: ..............................
Name:
Title:
75
<PAGE>
EXHIBIT A
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that the above-captioned Securities are not being
acquired by or on behalf of a United States person, or, if a beneficial interest
in the Securities is being acquired by or on behalf of a United States person,
that such United States person is a financial institution within the meaning of
Section 1.165-12(c)(1)(v) of the United States Treasury regulations which agrees
to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended and the regulations thereunder. If
the undersigned is a dealer, the undersigned agrees to obtain a similar
certificate from each person entitled to delivery of any of the above-captioned
Securities in bearer form purchased from it; provided, however, that, if the
undersigned has actual knowledge that the information contained in such a
certificate is false, the undersigned will not deliver a Security in temporary
or definitive bearer form to the person who signed such certificate
notwithstanding the delivery of such certificate to the undersigned.
As used herein, "United States person" means any citizen or resident of the
--------------------
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States and any estate or trust the income of
which is subject to United States Federal income taxation regardless of its
source, and "United States" means the United States of America (including the
-------------
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
We undertake to advise you by telex or facsimile if the above statement as
to beneficial ownership is not correct on the date of delivery of the above-
captioned Securities in bearer form as to all of such Securities. We understand
that this certificate is required in connection with certain tax legislation in
the United States. If administrative or legal proceedings are commenced or
threatened in connection with which this certificate is or would be relevant, we
irrevocably
A-1
<PAGE>
authorize you to produce this certificate or a copy thereof to any interested
party in such proceedings.
Dated: _______________, 19__
[To be dated no earlier than 15 days
prior to the Global Exchange Date]
[Name of Person Entitled to Receive Bearer
Security]
...............................................
(Authorized Signatory)
Name:
Title:
A-2
<PAGE>
EXHIBIT B
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL BEARER SECURITY CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify with respect to $_______ principal amount of the above-
---------
captioned Securities (i) that we have received from each of the persons
appearing in our records as persons entitled to a portion of such principal
amount (our "Qualified Account Holders") a certificate with respect to such
-------------------------
portion substantially in the form attached hereto, and (ii) that we are not
submitting herewith for exchange any portion of the Temporary Global Bearer
Security representing the above-captioned Securities excepted in such
certificates.
We further certify that as of the date hereof we have not received any
notification from any of our Qualified Account Holders to the effect that the
statements made by such Qualified Account Holders with respect to any portion of
the part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
Dated: _________________, 19__
[To be dated no earlier than
the Global Exchange Date]
[MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, Brussels Office, as
Operator of the Euroclear System]
[CEDEL S.A.]
By
B-1
<PAGE>
EXHIBIT C
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL S.A. TO OBTAIN INTEREST PRIOR TO A GLOBAL
EXCHANGE DATE CERTIFICATE
[Insert title or sufficient description of Securities]
This is to certify that, as of the Interest Payment Date (as defined in the
Indenture relating to the Securities) on [Insert Date], the undersigned, which
is a holder of an interest in the Temporary Global Bearer Security representing
the above Securities, is not a United States person.
As used herein, "United States person" means any citizen or resident of the
--------------------
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States and any estate or trust the income of
which is subject to United States Federal income taxation regardless of its
source, and "United States" means the United States of America (including the
-------------
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
We confirm that the interest payable on such Interest Payment Date will be
paid to each of the persons appearing in our records as being entitled to
interest to be paid on the above date from whom we have received a written
certification dated not earlier than 15 days prior to such Interest Payment Date
to the effect that the beneficial owner of such portion with respect to which
interest is to be paid on such date either is not a United States person or is a
United States person which is a financial institution which has provided an
Internal Revenue Service Form W-9 or is an exempt recipient as defined in United
States Treasury Regulations (Section Mark) 1.6049-4(c)(1)(ii). We undertake to
retain certificates received from our member organizations in connection
herewith for four years from the end of the calendar year in which such
certificates are received.
C-1
<PAGE>
The foregoing reflects any advice received subsequent to the date of any
certificate stating that the statements contained in such certificate are no
longer correct.
Dated: _______________, 19__
[To be dated on or after the
relevant Interest Payment Date]
[MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, Brussels Office,
as Operator of the Euroclear System]
[CEDEL S.A.]
By
C-2
<PAGE>
EXHIBIT D
FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNERS
TO OBTAIN INTEREST PRIOR TO A GLOBAL EXCHANGE
DATE CERTIFICATE
[Insert title or sufficient description of Securities]
This is to certify that as of the date hereof, no portion of the Temporary
Global Bearer Security representing the above-captioned Securities and held by
you for our account is beneficially owned by a United States person or, if any
portion thereof held by you for our account is beneficially owned by a United
States person, such United States person is a financial institution within the
meaning of Section 1.165-12(c)(1)(v) of the United States Treasury regulations
which agrees to comply with Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended and the regulations thereunder, and certifies
that either it has provided an Internal Revenue Service Form W-9 or is an exempt
recipient as defined in Section 1.6049-4(c)(1)(ii) of the United States Treasury
regulations.
As used herein, "United States person" means any citizen or resident of the
--------------------
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States and any estate or trust the income of
which is subject to United States Federal income taxation regardless of its
source, and "United States" means the United States of America (including the
-------------
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
We undertake to advise you by telex or facsimile if the above statement as
to beneficial ownership is not correct on the Interest Payment Date (as defined
in the Indenture relating to the Securities) on [Insert Date] as to any such
portion of such Temporary Global Bearer Security.
We understand that this certificate is required in connection with certain
tax legislation in the United States. If administrative or legal proceedings
are commenced or threatened in connection with which this certificate is or
would be relevant, we irrevocably authorize you to produce this certificate or a
copy thereof to any interested party in such proceedings.
Dated:__________________, 19__
[To be dated on or after the 15th
day before the relevant Interest Payment Date]
[Name of Account Holder]
...................................
(Authorized Signatory)
Name:
Title:
D-1
<PAGE>
EXHIBIT 12.1
AGRIBIOTECH, INC.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Year End Year End Nine Months Year End
September 30 September 30 June 30 June 30
1993 1994 1995 1996
<S> <C> <C> <C> <C>
Fixed charges:
Interest expense $ 31,918 23,617 35,624 464,515
Rent expense 2,700 5,491 36,000 101,610
Amortizaton of debt expense - - - 10,101
----------------------------------------------------
Total fixed charges $ 34,618 29,108 71,624 576,226
====================================================
Pretax income $(191,785) (890,308) (1,406,687) (3,324,132)
Add fixed charges 34,618 29,108 71,624 576,226
----------------------------------------------------
Earnings $(157,167) (861,200) (1,335,063) (2,747,906)
====================================================
Ratio of earnings to fixed charges - - - -
Deficiency of earnings to fixed charges 191,785 890,308 1,406,687 3,324,132
<CAPTION>
Year End Nine Months Nine Months
June 30 March 31 March 31
1997 1997 1998
<S> <C> <C> <C>
Fixed charges:
Interest expense 1,691,084 1,002,773 2,904,358
Rent expense 171,075 105,140 236,685
Amortizaton of debt expense 21,367 16,025 13,717
---------------------------------------
Total fixed charges 1,883,526 1,123,938 3,154,760
=======================================
Pretax income (2,713,765) (1,188,926) 1,410,134
Add fixed charges 1,883,526 1,123,938 3,154,760
---------------------------------------
Earnings (830,239) (64,988) 4,564,894
=======================================
Ratio of earnings to fixed charges - - 1.4
Deficiency of earnings to fixed charges 2,713,765 1,188,926 N/A
</TABLE>
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors AgriBioTech, Inc.
We consent to the use of our reports related to the consolidated financial
statements of AgriBioTech, Inc., the financial statements of Beachley-Hardy
Seed Company, the combined financial statements of Germain's Inc. and W-L
Research, Inc., the consolidated financial statements of E.F. Burlingham &
Sons, the financial statements of Olsen Fennell Seeds, Inc. and the combined
financial statements of Seed Corporation of America and Green Seed Company
Limited Partnership incorporated by reference herein and to the references to
our firm under the headings, "Selected Financial Data" and "Experts" in the
Prospectus.
Our report on the AgriBioTech, Inc. consolidated financial statements dated
September 26, 1997, except as to note 2(k) and the twelfth paragraph of note
7, which are as of February 10, 1998, refers to the retroactive effect of a
change in accounting for convertible preferred stock.
KPMG Peat Marwick LLP
Albuquerque, New Mexico
August 10, 1998
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
AgriBioTech, Inc.
We hereby consent to the use of our reports related to the financial
statements of Lofts Seed, Inc. and Budd Seed, Inc. herein and to the reference
to our firm under the heading "Experts" in the prospectus.
Cannon & Company
Winston-Salem, North Carolina
August 7, 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
AgriBioTech, Inc.
We hereby consent to the use of our reports related to the financial
statements of Williamette Seed Co. herein and to the reference to our firm
under the heading "Experts" in the Prospectus.
Price, Koontz & Davies, P.C.
Albany, Oregon
August 7, 1998
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation of our report dated September 26, 1996 on
the financial statements of Lofts Seed, Inc. as of June 30, 1996 and 1995 and
for the years ended June 30, 1996 and 1995, which is included in this
Registration Statement of AgriBioTech, Inc. and to the reference to our firm
under the caption "Experts" in the Registration Statement.
Amper, Politziner & Mattia, P.A.
Edison, New Jersey
August 7, 1998
<PAGE>
EXHIBIT 23.5
CONSENT OF INDEPENDENT AUDITORS
The Directors of Osceo Inc.
We consent to the incorporation by reference in the registration statement
on Form S-3, of AgriBioTech, Inc. of our report dated September 12, 1997
(except for note 10 which is as of June 12, 1998), with respect to the
consolidated balance sheet of Osceo Inc. as of June 30, 1997 and the
consolidated statements of income and retained earnings and changes in cash
resources for the year then ended, and to the reference to our firm under the
heading "Experts" in the Prospectus.
KPMG, Chartered Accountants
Mississanga, Canada
August 10, 1998
<PAGE>
EXHIBIT 23.6
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
AgriBioTech, Inc.
We hereby consent to the use of our reports related to the December 31, 1997
financial statements of Van Dyke Seed Company, Inc. herein and to the
reference to our firm under the heading "Experts" in the Prospectus.
Jones & Roth, P.C.
Hillsboro, Oregon
August 7, 1998
<PAGE>
EXHIBIT 23.7
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
AgriBioTech, Inc.
We hereby consent to the use of our reports related to the combined
financial statements of Zajac Performance Seeds, Inc., et al herein and to the
reference to our firm under the heading "Experts" in the Prospectus.
Ludwig Bulmer Seifert & Lane
Hackensack, New Jersey
August 7, 1998
<PAGE>
EXHIBIT 23.8
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
AgriBioTech, Inc.
We hereby consent to the use of our reports related to the consolidated
financial statements of Ramy Commercial Properties, Inc. and Subsidiary herein
and to the reference to our firm under the heading "Experts" in the
Prospectus.
Hawkins, Ash, Baptie & Company, LLP
LaCrosse, Wisconsin
August 7, 1998
