<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 7, 2000
REGISTRATION NO. 333-95297
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
SCI SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 63-0583436
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
</TABLE>
2101 WEST CLINTON AVENUE
HUNTSVILLE, ALABAMA 35805
(256) 882-4800
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
MICHAEL M. SULLIVAN, ESQ.
SECRETARY AND CORPORATE COUNSEL
SCI SYSTEMS, INC.
2101 WEST CLINTON AVENUE
HUNTSVILLE, ALABAMA 35805
(256) 882-4800
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-------------------------
COPIES TO:
G. WILLIAM SPEER, ESQ.
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
191 PEACHTREE STREET, N.E., 16TH FLOOR
ATLANTA, GEORGIA 30303
TELEPHONE: (404) 572-6600
-------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please 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 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. [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1)(2) FEE(3)
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities(4).......................
- ---------------------------------------------------------------------------------------------------------------------------------
Preferred Stock, no par value per
share(5)...............................
- ---------------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.10 par value per
share(6)...............................
- ---------------------------------------------------------------------------------------------------------------------------------
Depositary Shares(7).....................
- ---------------------------------------------------------------------------------------------------------------------------------
Warrants(8)..............................
- ---------------------------------------------------------------------------------------------------------------------------------
Total............................ $800,000,000 (2) $800,000,000 $211,200
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) In no event will the aggregate maximum initial offering price of all
securities issued pursuant to this Registration Statement exceed
$800,000,000, or the equivalent thereof in foreign currencies or currency
units. Any securities registered hereunder may be sold separately, together
or as units with other securities registered hereunder.
(2) The proposed maximum offering price per unit (a) has been omitted pursuant
to Instruction II.D of Form S-3 and (b) will be determined, from time to
time, by the Registrant in connection with the issuance by the Registrant of
the securities registered hereunder.
(3) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933, as amended. Paid at the time of the initial filing
of the registration statement.
(4) Subject to footnote 1, there is being registered hereunder an indeterminate
principal amount of Debt Securities as may be sold, from time to time, by
the Company. Such amount shall be increased, if any Debt Securities are
issued at an original issue discount, by an amount such that the net
proceeds to be received by the Company shall be equal to the above amount to
be registered. Also, in addition to any Debt Securities that may be issued
directly under this Registration Statement, there is being registered
hereunder such indeterminate amount of Debt Securities as may be issued upon
conversion or exchange of other Debt Securities, Preferred Stock or
Depositary Shares of the Company, for which no consideration will be
received by the Company, or upon exercise of Warrants registered hereby.
(5) Subject to footnote 1, there is being registered hereunder an indeterminate
number of shares of Preferred Stock as may be sold, from time to time, by
the Company. There also is being registered hereunder an indeterminate
number of shares of Preferred Stock as shall be issuable upon exercise of
Warrants registered hereby. In addition, there is being registered hereunder
such indeterminate number of shares of Preferred Stock, for which no
consideration will be received by the Company, as may be issued upon
conversion or exchange of Debt Securities of the Company.
(6) Subject to footnote 1, there is being registered hereunder an indeterminate
number of shares of Common Stock as may be sold, from time to time, by the
Company. There also is being registered hereunder an indeterminate number of
shares of Common Stock as may be issuable upon conversion of the Debt
Securities or the Preferred Stock or upon exercise of Warrants registered
hereby. The aggregate amount of Common Stock registered hereunder is
limited, solely for purposes of any at the market offerings, to that which
is permissible under Rule 415(a)(4) under the Securities Act of 1933, as
amended.
(7) Such indeterminate number of Depositary Shares to be evidenced by Depositary
Receipts, representing a fractional interest of a share of Preferred Stock.
(8) Subject to footnote 1, there is being registered hereunder an indeterminate
number of Warrants representing rights to purchase Debt Securities, shares
of Common Stock or Preferred Stock or Depositary Shares of the Company
registered hereby.
-------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
SUBJECT TO COMPLETION, DATED FEBRUARY 7, 2000
PROSPECTUS
$800,000,000
[LOGO OF SCI]
SCI SYSTEMS, INC.
Debt Securities, Preferred Stock, Common Stock
Depositary Shares and Warrants
-------------------------
When we offer securities, we will provide you with a prospectus supplement
describing the terms of the specific issue of securities, including the offering
price of the securities. The prospectus supplements may also add, update or
change information contained in this prospectus. You should read this prospectus
and any supplements carefully before you invest.
-------------------------
Our common stock is traded on the New York Stock Exchange
under the symbol "SCI."
-------------------------
INVESTING IN THESE SECURITIES INVOLVES RISKS. SEE "RISK FACTORS" BEGINNING
ON PAGE 7 OF THIS PROSPECTUS.
-------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF SECURITIES UNLESS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
The date of this prospectus is , 2000.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IN NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
About this Prospectus....................................... 3
Forward-Looking Statements.................................. 3
SCI Systems, Inc. .......................................... 3
Risk Factors................................................ 9
Use of Proceeds............................................. 13
Consolidated Ratio of Earnings to Fixed Charges............. 13
The Securities.............................................. 13
Legal Ownership of Securities............................... 14
Description of Debt Securities.............................. 18
Description of Capital Stock................................ 34
Description of Depositary Shares............................ 35
Description of Warrants..................................... 38
Plan of Distribution........................................ 40
Legal Matters............................................... 41
Experts..................................................... 41
Where You Can Find Additional Information................... 41
Incorporation of Certain Documents by Reference............. 42
</TABLE>
2
<PAGE> 4
ABOUT THIS PROSPECTUS
This prospectus is part of a Registration Statement on Form S-3 that we
filed with the Securities and Exchange Commission utilizing a "shelf "
registration process. Under this shelf process, we may, from time to time, sell
any combination of securities described in this prospectus in one or more
offerings. This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this prospectus
and any applicable prospectus supplement together with additional information
described below under the heading "Where You Can Find More Information."
When used in this prospectus and any prospectus supplement, the terms
"SCI", "we", "our", "us" and the "Company" refer to SCI Systems, Inc. and its
subsidiaries, unless the context requires otherwise.
FORWARD-LOOKING STATEMENTS
We make "forward-looking statements" within the meaning of Section 27A of
the Securities Act of 1933, as amended, and Section 21E of the Securities
Exchange Act of 1934, as amended, throughout this prospectus, supplements to
this prospectus and in the documents we incorporate by reference into this
prospectus. You can identify these statements by forward-looking words such as
"may," "will," "expect," "anticipate," "believe," "estimate," "plan" and
"continue" or similar words. We have based these statements on our current
expectations about future events. Although we believe that our expectations
reflected in or suggested by our forward-looking statements are reasonable, we
cannot assure you that these expectations will be achieved. Our actual results
may differ materially from what we currently expect. Important factors which
could cause our actual results to differ materially from the forward-looking
statements in this prospectus or in the documents that we incorporate by
reference into this prospectus are set forth in the "Risk Factors" section of
this prospectus, and elsewhere in this prospectus, in supplements to this
prospectus and in the documents that we incorporate by reference into this
prospectus.
You should read this prospectus, supplements to this prospectus and the
documents that we incorporate by reference into this prospectus completely and
with the understanding that our actual future results may be materially
different from what we expect. We may not update these forward-looking
statements, even in the event our situation changes in the future. All written
or oral forward-looking statements attributable to us are expressly qualified by
these cautionary statements.
SCI SYSTEMS, INC.
We are a diversified international electronics manufacturing services
provider. We design, manufacture, distribute, and service electronic products
for virtually every market segment. Markets served by us include the computer,
peripheral, datacom, telecom, medical, industrial, consumer, aerospace, defense,
and entertainment industries, as well as the U.S. Government.
Founded in 1961, we were initially engineering oriented -- with the U.S.
Government's National Aeronautics and Space Administration (NASA) and its prime
contractors as our
3
<PAGE> 5
early customers. Building on a strong technical and engineering base, which we
still maintain today, we participated in a number of significant Department of
Defense programs and later expanded into a variety of commercial activities.
In the mid-1970s, we pioneered the electronic contract manufacturing
services industry, which encompasses a full range of outsourcing services to
Original Equipment Manufacturers (OEMs) for the production and assembly of
electronic products, including engineering, procurement and inventory
management, testing, distribution and depot repair services. We became the
world's premier provider of electronics manufacturing services, and we continue
as a leader in surface mount technology (SMT) production capacity.
Although we derive much of our revenue from hardware manufacturing and
maintain a broad technology base, we are primarily a vertically integrated
engineering and manufacturing services provider with dedication to close
customer interaction forming the cornerstone of our activities. The key elements
of our operating philosophy -- quality products, competitive pricing, and
customer responsiveness -- are a proven foundation for success. These
fundamental tenets will continue to guide us as we pursue opportunities for
growth and expansion.
Our customers have included many of the foremost global OEMs that require
electronic manufacturing services, such as Hewlett-Packard, Compaq, Dell,
Nortel, Nokia, Ericsson, Philips, Silicon Graphics, Cabletron, General Electric,
Roche, Johnson & Johnson, Boeing, Houston Tracker, Intel, ADM, LSI Logic, and
McData.
We currently have 37 facilities in 17 different countries. We believe we
produce the broadest range of subassemblies and finished products of any
electronic manufacturing services company. These products and a full range of
engineering, distribution, logistic, and after sales services are supplied to a
large multinational customer base for a highly diversified mix of commercial
applications as well as for military and space programs. The following is a
partial listing of products that we build.
Telecommunications Products
- Cable modems for high-speed Internet access
- Terminals for tracking vehicles and cargo containers via satellite
- Broadband digital access products for fiber-to-the-curb installations
- Transaction automation systems
- Printed circuit board (PCB) assemblies for use in:
- public switching equipment
- ground-based RF telephone systems
- high speed modems
- PCMCIA-format plug-in modems
- large cellular network base stations
- advanced multiplex equipment
- credit card processors
- token ring switches
- PCB assemblies and finished products for:
- routers
- hubs
- switches
- multiplexers
- GSM radios
- battery chargers for cellular products
- power systems for base stations
4
<PAGE> 6
Computers
- Personal Computer (PC), server, and workstation motherboards
- Home computers
- Office computers
- Microprocessor modules
- ATM motherboards
- Notebook computers
- Workstations
- Servers
- Ruggedized computers
Industrial Products
- Bar code readers
- Test and measurement systems
- Hand held tracking devices
- Battery chargers for electric vehicles
- Semiconductor processing equipment
- Hand held engine analyzers
- Sheet metal, plastic, and machined components
- Ruggedized high reliability assemblies for:
- railroad locomotives
- broadcast equipment
- studio and remote programming systems
- special effects units
- signal and transmission routing and processing systems
- automotive sensors
Military and Aerospace Products
- Aircraft voice and digital communications control systems
- GPS User Equipment for fixed-wing aircraft, helicopters, and ships
- Systems for the Apache Longbow helicopter: systems computers, weapons
computers, and communications processors
- Tactical communications - ruggedized field telephones and shelter
communications systems
- Fiber Optic Guided Missile gunner consoles and fiber optic dispensers
system
- Data Bus products for aircraft
- Current mode couplers and Standard Interface Modules for aircraft
- Flight test instrumentation systems for joint service applications on a
wide range of aircraft
- Nonvolatile memories for aircraft and satellite applications
- Interference blanker systems for aircraft
- Data acquisition systems for the Titan IV Launch Vehicle
- Family of standard bus computer subsystems
- Satellite terminals - two-way terrestrial terminals for voice, data, and
telephony
- Sincgars radio card assemblies
Peripheral Products
- Color ink-jet printers
- High resolution color scanners and printers
- Point-of-sale data entry and management systems
- Video monitors
- Data terminals
- Network interface assembly
- Backplanes
5
<PAGE> 7
- Notebook docking stations
- Asynchronous Transfer Mode control units
- Credit verification systems
- Memory modules
- PCB assemblies for use in:
- disk drives
- disk array systems
- optical storage devices and systems
- tape drives
- large automated tape libraries
- graphic design systems
- graphics accelerators
- ink-jet, thermal, and dot-matrix printers
- color plotters
- copiers
Consumer Products
- Video projectors
- Internet "TV set top" converters
- Family of digital TV receiver products for:
- direct broadcast satellites
- fixed cables
- ground based broadcast
- Miniature printed circuit board assemblies for:
- camera products
- cellular telephones
- Automotive control/dashboard products
Medical Products
- Vital signs monitoring equipment
- Blood glucose monitors
- Electronic controls for X-ray equipment
- Printed circuit board assemblies for:
- Computer Tomography (CT) scanners
- Magnetic Resonance Imaging (MRI) machines
- X-ray systems
- ultrasound systems
- infusion pumps
- sleep apnea pressure pumps
ENGINEERING SERVICES
Many of our existing and potential customers are in various stages of
migrating from vertical integration (where they perform all services to bring
products to market in house) to virtual integration (where separate service
providers tied together over the Internet, work together to bring products to
market, resulting in very active and timely data interchange) and will
increasingly rely on the electronic manufacturing services industry for new
product development and introduction support. We are benefiting from this trend,
having begun as an engineering oriented company and currently possessing the
most extensive product development and related support resources of any company
in our industry. These engineering resources, coupled with our global supply
chain, manufacturing, test, distribution, and after sale support capabilities,
serve to promote lasting strategic partnerships. Engineering support is a
growing influence on our customers' ability to realize their outsourcing
objectives of lower total cost, shorter time to market, reduced capital
investment, enhanced risk management, access to leading technologies, and
flexible manufacturing and distribution capacity.
6
<PAGE> 8
The depth and breadth of our engineering resources and capabilities
differentiate SCI from our competitors with customers seeking to enhance the
product development process through a relationship with a provider of electronic
manufacturing services. SCI is an expert in the design of products and systems
with particular emphasis on computer, communications, and instrumentation
technologies. Our product development engineers and technical support personnel
provide our customers with electronic, mechanical, software, and system
engineering services. We employ in excess of 2,000 engineering personnel,
including engineers specializing in the additional disciplines of quality,
reliability, component, manufacturing, test, industrial, and environmental
engineering.
MANUFACTURING TECHNOLOGY
We utilize leading edge manufacturing processes and equipment. We
aggressively invest in the very latest manufacturing and electronic interconnect
technologies and actively analyze and anticipate new manufacturing technologies.
Our equipment is continuously upgraded or replaced to provide increased
production throughput, higher productivity, and greater accuracy and
reliability, and to utilize the latest assembly technologies.
COMPANY ORGANIZATION
SCI is organized into decentralized divisions and plants with leadership,
oversight, and certain core services provided from our corporate center. We
currently operate 37 facilities in 17 countries organized into 8 divisions.
TECHNOLOGY DIVISION
The Technology Division consists of three plants in Alabama and a plant in
Colorado. The Division was formed by combining SCI's domestic commercial
development engineering and support resources with its former Government
Division to allow us to focus technology resources on a range of commercial and
government activities. In addition to manufacturing products for its own
customers, this Division serves as a corporate wide resource to design and
support customer products manufactured in SCI facilities around the world. The
Division's product line ranges from military and space products built and tested
to exacting standards to a range of commercial products built to order in lot
size of one and delivered directly to the customer base.
PERSONAL COMPUTER DIVISION
The Personal Computer Division has two plants in Alabama and a plant in the
Netherlands, all producing a variety of finished personal computers (PCs) in
high volumes. One plant serves as the main production facility for a customer's
global corporate PC business. Another provides assembly of a family of finished
consumer PC products for the North American market. The Netherlands plant
provides final assembly of PCs for the European market.
WESTERN DIVISION
The four plants of the Western Division are located in California, South
Dakota, and Colorado, and serve the Western United States. The plants operate a
large number of automated assembly lines and offer a full range of manufacturing
services, primarily in high-mix medium volume production of subassemblies for
major customers. Additionally, one of
7
<PAGE> 9
the Division's operations provides fabricated sheet metal products and
assemblies, generally referred to as enclosures, to OEMs and other electronic
manufacturing service providers. The Division's plants provide extensive new
product introduction services.
SOUTHEASTERN DIVISION
The Southeastern Division serves customers in the Southeastern United
States from three plants in Alabama and one plant in North Carolina. One Alabama
plant specializes in general machining, sheet metal fabrication, plastic
molding, and system integration of precision mechanical products. This plant's
services are available to all SCI plants. High-volume products of this Division
include medical devices and satellite TV receivers. A plant in Brazil provides
production support for global customers' South American market. That plant is
positioned to capitalize on growth opportunities in that promising regional
market.
NORTHEASTERN DIVISION
The four plants of the Northeastern Division -- in Maine, New Hampshire,
Quebec and Ontario -- serve the Northeastern United States and Canada. The
plants primarily produce subassemblies for graphics equipment and for the data
communication and telecommunication industries. The plants also perform final
assembly of several computer products.
MEXICAN DIVISION
The Mexican Division has two plants in Guadalajara and one each in
Monterrey and Mexico City and operates SCI's largest number of automated
production lines. The Division provides services to multinational customers for
the North American computer, peripheral, and high-end consumer product markets.
An export logistics center is located in Texas to service this Division and the
Brazilian plant.
ASIAN DIVISION
From plants in Singapore, Thailand, Malaysia, and mainland China, the Asian
Division serves its region with a large number of high-volume automated assembly
lines. The plants produce subassemblies for shipment to numerous customer final
assembly plants, as well as finished products for multinational distribution.
EUROPEAN DIVISION
The European Division operates eight plants, located in Scotland, Ireland,
France, Israel, Hungary, Finland, Sweden, and Spain. SCI's European capacity has
expanded rapidly in recent years. This Division's plant capabilities offer a
full line of production services to a sizeable number of global customers in
proximity to their markets. Principal markets include telecommunication
equipment, peripheral products, and multimedia TV reception units.
PRINCIPAL EXECUTIVE OFFICES AND WEBSITE
Our principal executive offices are located at 2101 West Clinton Avenue,
Huntsville, Alabama, 35805, and our telephone number is (256) 882-4800. Our
website is located at www.sci.com. Information contained in our website is not a
part of this prospectus or the documents incorporated by reference in this
prospectus.
8
<PAGE> 10
RISK FACTORS
Before you invest in the securities that we are offering, you should be
aware that the occurrence of any of the events described in this risk factor
section and elsewhere in this prospectus or in a supplement to this prospectus
could have a material adverse effect on our business, financial condition and
results of operations. You should carefully consider these risk factors and the
specific risks set forth under the caption "Risk Factors" in any supplement to
this prospectus, together with all of the other information included in this
prospectus or in a supplement to this prospectus and in documents we incorporate
by reference before you decide to purchase our securities. You may obtain the
information incorporated by reference into this prospectus without charge by
following the instructions in the "Where You Can Find More Information" section
of this prospectus.
A MAJORITY OF OUR REVENUES COMES FROM A LIMITED NUMBER OF CUSTOMERS; REDUCTIONS
IN SALES TO THESE CUSTOMERS COULD ADVERSELY AFFECT OUR RESULTS OF OPERATIONS
A majority of our revenues are derived from direct sales to original
equipment manufacturers. Although we have several hundred customer accounts, in
any particular period a significant percentage of sales is derived from a
limited group of customers. We expect Hewlett-Packard, Compaq, Dell and Nortel
each to account for more than 10% of annual sales in the current fiscal year. In
fiscal year 1999, our ten largest customers contributed more than 75% of
revenues. Significant reductions in sales to any of these customers could have a
material adverse effect on our results of operations.
Customer contracts can be canceled and volume levels changed or delayed at
any time without notice, subject to cancellation costs, if any. Timely
replacement of canceled, delayed, or reduced contracts with new business cannot
be assured. These risks are exacerbated as a majority of our sales are to
customers in the electronics industry, which is subject to rapid market and
technological changes and frequent product obsolescence. Factors affecting the
electronics industry in general or any of the our major customers in particular
could have a material adverse effect upon our results of operations.
WE ARE SUBJECT TO CREDIT RISKS WITH CUSTOMERS
Our major contracts are with customers in the high technology industry.
Credit terms relating to both accounts receivable and contract inventories are
extended to customers after performing credit evaluations. When significant
credit risks exist, letters of credit or other appropriate security are
generally requested. However, credit losses on customer contracts have occurred
in the past and no assurances can be given that credit losses, which could be
material, will not reoccur.
OUR RAPID GROWTH MAY BE DIFFICULT TO MANAGE
We have experienced rapid growth over recent years. We have acquired and
built substantial facilities in several locations and continue to do so. There
can be no assurance that historical revenue growth will continue or that we will
successfully manage existing operations or future plants we may acquire or
build. As we manage our operations and expand geographically, we may experience,
as we have in the past, inefficiencies related to new operations and broadened
geographic diversification. We may be adversely affected by new and acquired
facilities that do not achieve growth sufficient to offset increased
expenditures associated with expansion. In addition, should we increase capacity
and
9
<PAGE> 11
expenditures in anticipation of future sales levels which do not materialize,
profitability could be adversely affected. Moreover, occasionally customers may
require rapid production increases which can stress our resources.
OUR RESULTS OF OPERATIONS MAY BE AFFECTED BY THE SEASONALITY OF OUR BUSINESS
We have not historically considered our business to be consistently
seasonal, although seasonal demands for some customers' products sold to
consumers may impact our quarterly revenues. In recent periods the proportion of
our products ultimately sold at retail has expanded, which has increased
seasonality in our sales. Operating margins have seen seasonal fluctuations in
the past, particularly in the first fiscal quarter due to slowing effects of the
summer season. We believe these seasonality effects may continue.
OUR INTERNATIONAL OPERATIONS ARE SIGNIFICANT AND INCREASING; THIS INCREASES OUR
EXPOSURE TO THE RISKS OF GLOBAL OPERATIONS
We operate internationally with the majority of revenue generated in the
United States, but with significant foreign activities. Our U.S. export and
foreign sales represented 44% of total sales in 1999, 34% in 1998, and 26% in
1997. Additionally, much of our manufacturing material is sourced from
international suppliers. As a result of our international sales and facilities,
our operations are subject to a variety of risks that are unique to our
international operations, including the following:
- adverse movement of foreign currencies against the U.S. dollar (our
reporting currency);
- import and export duties and value added taxes that we may have to
absorb;
- import and export regulation changes that could affect our profit margins
or restrict exports;
- potential restrictions on the transfer of funds; and
- the burden and cost of compliance with foreign laws.
WE OPERATE IN A HIGHLY COMPETITIVE INDUSTRY
We operate primarily in the electronics manufacturing services industry. We
compete against numerous domestic and foreign companies which participate in our
industry. We also face competition from current and prospective customers who
evaluate our capabilities against the merits of internal manufacturing.
Competition varies depending upon the type of service offered and the geographic
area of competition. Competition is intense and is expected to continue to be so
as more companies enter our industry and existing competitors expand capacity.
We could be adversely affected if our competitors introduce superior or lower
priced services.
To remain competitive, we must continue to develop and provide
technologically advanced engineering services, information systems, and
manufacturing processes. We must also maintain high quality, offer flexible
delivery schedules, deliver products on a timely basis, and continue to price
our products and services competitively. Failure to satisfy any of the foregoing
requirements could adversely affect us.
10
<PAGE> 12
SHORTAGES IN THE AVAILABILITY AND INCREASED PRICES OF ELECTRONIC COMPONENTS MAY
AFFECT OUR RESULTS OF OPERATIONS
Components are sourced on a global basis. Component availability is
periodically subject to constraints, shortages, and abundances. Many components
are available only from a limited number of sources. Some components are subject
to periodic allocation by suppliers. Although no assurances can be given, we
have generally been able to obtain adequate supply to maintain production when
shortages occur. However, shipment delays have occurred and may reoccur.
Significant component constraints could adversely affect us. Our revenues are
mainly generated from turnkey manufacturing services. Accordingly, average
selling prices for our products fluctuate proportionally to component prices.
OUR OPERATING RESULTS MAY FLUCTUATE DUE TO A NUMBER OF FACTORS
Our operating results are dependent upon our ability to identify and react
in a timely manner to changes in business conditions and customer requirements,
especially our actions in balancing inventory quantities, property, plant, and
equipment capacity, staffing levels, and liquidity amounts. Accordingly,
operating results could vary over time as such conditions change.
WE DEPEND ON KEY PERSONNEL
Our success depends largely upon the efforts and abilities of key
managerial and technical employees. The loss of services of certain key
personnel could adversely affect us. Our business depends upon our ability to
recruit, train, and retain senior managers, skilled professional and technical
salaried personnel, and skilled and semiskilled hourly employees at competitive
costs for which there is intense competition. Failure to do so could adversely
affect us.
WE ARE SUBJECT TO ENVIRONMENTAL RISKS
We are subject to a variety of environmental regulations relating to the
use, storage, discharge, and disposal of hazardous materials used in our
manufacturing processes. Our failure to comply with present and future
regulations could subject us to future liabilities or the suspension of
production. In addition such regulations could restrict our ability to expand
our facilities or could require us to acquire costly equipment or to incur other
significant expenses to comply with environmental regulations.
WE ARE A PARTY TO LEGAL PROCEEDINGS
We are a party to several lawsuits incidental to our various activities and
incurred in the ordinary course of business. We believe that we have meritorious
claims and defenses in each case that either will absolve us of or limit our
liability. We also believe we have adequately provided for any likely material
adverse outcome of pending litigation. After consultation with counsel, it is
the opinion of management that, although there can be no assurance given, none
of the associated claims when resolved will have a material adverse effect upon
our consolidated financial position.
We, together with eighty-seven other defendants including our major
domestic competitors and customers, have been sued by the Lemelson Medical
Educational Research Foundation (Lemelson) alleging infringement on fifteen
patents relating to machine vision and
11
<PAGE> 13
use of bar coding and bar code readers in manufacturing. Lemelson has been
successful in settling similar assertions against certain automobile and
semiconductor manufacturers. Lemelson is requesting damages equal to a certain
percent of sales for a ten-year period. We, together with other major
defendants, intend to contest the validity of the patents. In addition, possible
recourse exists against the manufacturers of the equipment which Lemelson is
alleging violated its patents. While no guarantee can be given, we believe that
outcome of this lawsuit will not result in any material adverse effect to us.
The maximum exposure for this suit is currently estimated to be less than one
percent of the our current assets, and we have provided for what we believe will
be the likely outcome of the suit. Additionally, if Lemelson's patents are
upheld, we believe we will be able to obtain adequate licenses to use them.
WE ARE SENSITIVE TO INTEREST RATE FLUCTUATIONS
Short-term interest rate changes can impact the interest expense on our
variable interest rate debt, as well as the discount (reflected as interest
expense) on our accounts receivable sold under an asset securitization
agreement.
WE ARE EXPOSED TO FLUCTUATIONS IN THE EXCHANGE RATES OF FOREIGN CURRENCIES
We predominantly conduct our foreign sales and purchase transactions in
U.S. dollars or under customer contract provisions that protect against most
major currency risks. Our largest currency risk is that associated with
Brazilian operations. Unlike our other foreign operations, our plant in Brazil
is directly subjected to the effects of currency devaluation on certain
customers' contracts until forward pricing is adjusted accordingly (normally
monthly). During fiscal 1999, the Brazilian currency experienced severe
devaluations. This devaluation adversely impacted the results of the Brazilian
operation. We consider the Brazilian economic outlook too uncertain to predict.
Other currency exchange risks primarily relate to current assets and
liabilities denominated in other than the U.S. dollar. Although we endeavor to
balance such items against each other where possible at individual operations,
no assurance can be given that we will be successful in mitigating the effects
of changes in currency exchange rates upon such non-U.S. dollar transactions.
Changes in some foreign currency exchange rates impact the geographic areas
where our revenue is derived. When foreign currencies are devalued,
manufacturing costs of plants in those countries may become more competitive
with other established plants.
OUR STOCK PRICE MAY BE VOLATILE
Our common stock is traded on the New York Stock Exchange. Our common stock
market price has fluctuated substantially in the past and could fluctuate
substantially in the future based on a variety of factors including among
others:
- future announcements covering us or our key customers or competitors;
- demand for our services;
- changes in earnings estimates by analysts;
- fluctuations in quarterly operating results;
12
<PAGE> 14
- general conditions in the contract manufacturing, communications,
computer peripherals, personal computer, automotive or consumer products
industries;
- general economic, political and market conditions, such as recessions or
international currency fluctuations;
- litigation; and
- government regulations.
USE OF PROCEEDS
Unless otherwise indicated in the prospectus supplement, the net proceeds
from the sale of securities offered by this prospectus will be used for general
corporate purposes, including capital expenditures, the repayment or refinancing
of debt and to meet working capital needs. We expect from time to time to
evaluate the acquisition of businesses, products and technologies, for which a
portion of the net proceeds may be used. Pending such uses, we will invest the
net proceeds in interest-bearing securities.
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The consolidated ratio of earnings to fixed charges for each of the periods
indicated is as follows:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED JUNE 30, THREE MONTHS ENDED
-------------------------------------- -----------------------------
SEPTEMBER 27, SEPTEMBER 28,
1995 1996 1997 1998 1999 1998 1999
----- ----- ----- ----- ------ ------------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges...... 5.11x 6.25x 7.20x 8.70x 10.02x 7.77x 16.54x
</TABLE>
For these ratios, "earnings" represents income before taxes plus fixed charges.
Fixed charges consist of interest expense and amortization of debt expenses.
THE SECURITIES
SCI may from time to time offer under this prospectus, separately or
together:
- unsecured senior or subordinated debt securities;
- shares of common stock;
- shares of preferred stock, which may be represented by depositary shares
as described below;
- warrants to purchase shares of common stock;
- warrants to purchase shares of preferred stock; and
- warrants to purchase debt securities.
The aggregate initial offering price of the offered securities will not
exceed $800,000,000.
13
<PAGE> 15
LEGAL OWNERSHIP OF SECURITIES
BOOK-ENTRY HOLDERS
SCI will issue debt securities in book-entry form only, unless it specifies
otherwise in a prospectus supplement. SCI may issue shares of common stock and
shares of preferred stock and warrants in book-entry form. If securities are
issued in book-entry form, this means the securities will be represented by one
or more global securities registered in the name of a financial institution that
holds them as depositary on behalf of other financial institutions that
participate in the depositary's book-entry system. These participating
institutions, in turn, hold beneficial interests in the securities on behalf of
themselves or their customers.
We will only recognize the person in whose name a security is registered as
the holder of that security. Consequently, for securities issued in global form,
we will recognize only the depositary as the holder of the securities and all
payments on the securities will be made to the depositary. The depositary passes
along the payments it receives to its participants, which in turn pass the
payments along to their customers who are the beneficial owners. The depositary
and its participants do so under agreements they have made with one another or
with their customers; they are not obligated to do so under the terms of the
securities.
As a result, investors will not own securities directly. Instead, they will
own beneficial interests in a global security, through a bank, broker or other
financial institution that participates in the depositary's book-entry system or
holds an interest through a participant. As long as the securities are issued in
global form, investors will be indirect holders, and not holders, of the
securities.
STREET NAME HOLDERS
In the future we may terminate a global security or issue securities
initially in non-global form. In these cases, investors may choose to hold their
securities in their own names or in "street name." Securities held by an
investor in street name would be registered in the name of a bank, broker or
other financial institution that the investor chooses, and the investor would
hold only a beneficial interest in those securities through an account he or she
maintains at that institution.
For securities held in street name, we will recognize only the intermediary
banks, brokers and other financial institutions in whose names the securities
are registered as the holders of those securities and all payments on those
securities will be made to them. These institutions pass along the payments they
receive to their customers who are the beneficial owners, but only because they
agree to do so in their customer agreements or because they are legally required
to do so. Investors who hold securities in street name will be indirect holders,
not holders, of those securities.
LEGAL HOLDERS
We, and any third parties employed by us or acting on our behalf, such as
trustees, depositories and transfer agents, are obligated only to the legal
holders of the securities. We do not have obligations to investors who hold
beneficial interests in global securities, in street name or by any other
indirect means. This will be the case whether an investor chooses to be an
indirect holder of a security or has no choice because we are issuing the
securities only in global form.
14
<PAGE> 16
For example, once we make a payment or give a notice to the holder, we have
no further responsibility for the payment or notice even if that holder is
required, under agreements with depositary participants or customers or by law,
to pass it along to the indirect holders but does not do so. Similarly, if we
want to obtain the approval of the holders for any purpose (for example, to
amend an indenture or to relieve us of the consequences of a default or of our
obligation to comply with a particular provision of the indenture) we would seek
the approval only from the holders, and not the indirect holders, of the
securities. Whether and how the holders contact the indirect holders is up to
the holders.
When we refer to you, we mean those who invest in the securities being
offered by this prospectus, whether they are the holders or only indirect
holders of those securities. When we refer to your securities, we mean the
securities being offered by this prospectus in which you hold a direct or
indirect interest.
SPECIAL CONSIDERATIONS FOR INDIRECT HOLDERS
If you hold securities through a bank, broker or other financial
institution, either in book-entry form or in street name, you should check with
your own institution to find out:
- how it handles securities payments and notices;
- whether it imposes fees or charges;
- how it would handle a request for the holders' consent, if ever required;
- whether and how you can instruct it to send you securities registered in
your own name so you can be a holder, if that is permitted in the future;
- how it would exercise rights under the securities if there were a default
or other event triggering the need for holders to act to protect their
interests; and
- if the securities are in book-entry form, how the depositary's rules and
procedures will affect these matters.
GLOBAL SECURITIES
A global security represents one or any other number of individual
securities. Generally, all securities represented by the same global securities
will have the same terms. We may, however, issue a global security that
represents multiple securities that have different terms and are issued at
different times. We call this kind of global security a master global security.
Each security issued in book-entry form will be represented by a global
security that we deposit with and register in the name of a financial
institution or its nominee that we select. The financial institution that is
selected for this purpose is called the depositary. Unless we specify otherwise
in the applicable prospectus supplement, The Depository Trust & Clearing
Corporation, New York, New York, known as DTC, will be the depositary for all
securities issued in book-entry form.
A global security may not be transferred to or registered in the name of
anyone other than the depositary or its nominee, unless special termination
situations arise. We describe those situations below under "Special Situations
When a Global Security Will Be Terminated." As a result of these arrangements,
the depositary, or its nominee, will be the sole registered owner and holder of
all securities represented by a global security, and investors will be permitted
to own only beneficial interests in a global security. Beneficial
15
<PAGE> 17
interests must be held by means of an account with a broker, bank or other
financial institution that in turn has an account with the depositary or with
another institution that does. Thus, an investor whose security is represented
by a global security will not be a holder of the security, but only an indirect
holder of a beneficial interest in the global security.
SPECIAL CONSIDERATIONS FOR GLOBAL SECURITIES
As an indirect holder, an investor's rights relating to a global security
will be governed by the account rules of the investor's financial institution
and of the depositary, as well as general laws relating to securities transfers.
We do not recognize this type of investor as a holder of securities and instead
deal only with the depositary that holds the global security.
If securities are issued only in the form of a global security, an investor
should be aware of the following:
- An investor cannot cause the securities to be registered in his or her
name, and cannot obtain non-global certificates for his or her interest
in the securities, except in the special situations we describe below.
- An investor will be an indirect holder and must look to his or her own
bank or broker for payments on the securities and protection of his or
her legal rights relating to the securities, as we describe under "Legal
Ownership of Securities" above.
- An investor may not be able to sell interests in the securities to some
insurance companies and to other institutions that are required by law to
own their securities in non-book-entry form.
- An investor may not be able to pledge his or her interest in a global
security in circumstances where certificates representing the securities
must be delivered to the lender or other beneficiary of the pledge in
order for the pledge to be effective.
- The depositary's policies, which may change from time to time, will
govern payments, transfers, exchanges and other matters relating to an
investor's interest in a global security. Neither we nor any third
parties employed by us or acting on our behalf, such as trustees and
transfer agents, have any responsibility for any aspect of the
depositary's actions or for its records of ownership interests in a
global security. We also do not supervise the depositary in any way.
- DTC requires that those who purchase and sell interests in a global
security within its book-entry system use immediately available funds and
your broker or bank may require you to do so as well.
- Financial institutions that participate in the depositary's book-entry
system, and through which an investor holds its interest in a global
security, may also have their own policies affecting payments, notices
and other matters relating to the security. There may be more than one
financial intermediary in the chain of ownership for an investor. We do
not monitor and are not responsible for the actions of any of those
intermediaries.
16
<PAGE> 18
SPECIAL SITUATIONS WHEN A GLOBAL SECURITY WILL BE TERMINATED
In a few special situations described below, a global security will be
terminated and interests in it will be exchanged for certificates in non-global
form representing the securities it represented. After that exchange, the choice
of whether to hold the securities directly or in street name will be up to the
investor. Investors must consult their own banks or brokers to find out how to
have their interests in a global security transferred on termination to their
own names, so that they will be holders. We have described the rights of holders
and street name investors above.
The special situations for termination of a global security are as follows:
- if the depositary notifies us that it is unwilling, unable or no longer
qualified to continue as depositary for that global security and we do
not appoint another institution to act as depositary within a specified
time period;
- if we elect to terminate that global security; or
- if an event of default has occurred with regard to securities represented
by that global security and has not been cured or waived.
The prospectus supplement may also list additional situations for
terminating a global security that would apply to a particular series of
securities covered by the prospectus supplement. If a global security is
terminated, only the depositary is responsible for deciding the names of the
institutions in whose names the securities represented by the global security
will be registered and, therefore, who will be the holders of those securities.
17
<PAGE> 19
DESCRIPTION OF DEBT SECURITIES
This prospectus describes the terms and provisions of the debt securities.
When we offer to sell a particular series of debt securities, we will describe
the specific terms of the securities in a prospectus supplement. The prospectus
supplement also will indicate whether the general terms and provisions described
in this prospectus apply to the particular series of debt securities.
The senior debt securities will be senior unsecured obligations of SCI
issued in one or more series under an indenture (the "senior indenture") to be
entered into between SCI and a U.S. banking institution, as trustee, whose name
will be set forth in the applicable supplement. The subordinated debt securities
will be subordinated unsecured obligations of SCI issued in one or more series
under an indenture (the "subordinated indenture") to be entered into between SCI
and a U.S. banking institution, as trustee, whose name will be set forth in the
applicable prospectus supplement. The forms of the indentures have been or will
be filed with the SEC as exhibits to the registration statement. The terms of
any series of debt securities will be those set forth in the applicable
indenture and such debt securities and those made part of the indenture by the
Trust Indenture Act.
Because the summary of the material provisions of the indentures and the
debt securities set forth below and the summary of the material terms of a
particular series of debt securities set forth in the applicable prospectus
supplement are not complete, you should refer to the forms of the applicable
indenture and the debt securities for complete information regarding the terms
and provisions of that indenture (including defined terms) and the debt
securities. Wherever particular articles, sections or defined terms of an
indenture are referred to, those articles, sections or defined terms are
incorporated herein by reference, and the statement in connection with which
such reference is made is qualified in its entirety by such reference.
GENERAL
The debt securities may be issued from time to time in one or more series.
The indentures do not limit the aggregate principal amount of debt securities
which SCI may issue thereunder and provide that SCI may issue debt securities of
any series thereunder up to an aggregate principal amount which SCI may
authorize from time to time.
Unless otherwise provided in a prospectus supplement, the senior debt
securities will be unsecured obligations of SCI and will rank equally with all
of its other unsecured and unsubordinated indebtedness. The subordinated debt
securities of each series will be unsecured obligations of SCI, subordinated in
right of payment to the prior payment in full of all Senior Indebtedness (which
term includes senior debt securities) of SCI with respect to such series, as
described below under "Subordination of Subordinated Debt Securities" and in the
applicable prospectus supplement.
The prospectus supplement relating to the series of debt securities offered
thereby will describe the specific terms of the debt securities offered. These
terms will include some or all of the following:
- the title or designation of such debt securities and whether the debt
securities will be senior debt securities or subordinated debt
securities;
- any limit on the aggregate principal amount of such debt securities;
18
<PAGE> 20
- the price or prices (expressed as a percentage of the principal amount
thereof) at which such debt securities will be issued;
- the date or dates on which the principal of and premium, if any, on such
debt securities will be payable, or the method or methods, if any, by
which such date or dates will be determined;
- the rate or rates at which such debt securities will bear interest, if
any, or the method or methods, if any, by which such rate or rates are to
be determined, the date or dates, if any, from which such interest will
accrue, or the method or methods, if any, by which such date or dates are
to be determined, and the basis upon which interest will be calculated if
other than that of a 360-day year of twelve 30-day months;
- the dates on which such interest, if any, will be payable and the record
dates, if any, therefor;
- the place or places, if any, other than or in addition to New York City,
of payment, transfer, conversion and/or exchange of the debt securities
and where notices or demands to or upon SCI in respect of the debt
securities may be served;
- if applicable, the date or dates on which, the period or periods within
which, the price or prices at which and the other terms and conditions
upon which debt securities may be redeemed at the option of SCI or are
subject to repurchase at the option of the holders;
- the terms of any sinking fund or analogous provision;
- the authorized denominations in which such debt securities will be
issuable, if other than denominations of $1,000 and any integral multiple
thereof;
- whether the amount of payments of principal of, or premium, if any, or
interest on the debt securities will be determined with reference to an
index, formula or other method, which could be based on one or more
commodities, equity indices or other indices, and how these amounts will
be determined;
- whether any such debt securities are to be issuable in registered form as
registered securities or bearer form as bearer securities or both and, if
in bearer form, the terms and conditions relating thereto and any
limitations on issuance of such bearer securities (including in exchange
for registered securities of the same series);
- whether any such debt securities will be issued in temporary or permanent
global form and, if so, the identity of the depositary for such global
debt security;
- the person to whom any interest on any registered securities of the
series shall be payable, if other than the person in whose name the
registered security (or one or more predecessor securities (i.e., every
previous debt security evidencing all or a portion of the same
indebtedness as that evidenced by such particular debt security)) is
registered at the close of business on the regular record date for such
interest, the manner in which, or the person to whom, any interest on any
bearer security of the series shall be payable, if other than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature, and the extent to which, or the manner in which, any
interest payable on a temporary global debt security will be paid if
other than in the manner provided in the indenture;
19
<PAGE> 21
- the portion of the principal amount of such debt securities which shall
be payable upon acceleration thereof if other than the full principal
amount thereof;
- if the principal amount of the debt securities payable at maturity is not
determinable as of any date prior to such maturity, the amount which will
be deemed to be the outstanding principal amount of such debt securities;
- if other than United States dollars, the currency of payment, including
composite currencies, of the principal of, any premium or interest on or
any Additional Amounts with respect to any of such debt securities;
- whether the debt securities will be convertible into and/or exchangeable
for other securities, and, if so, the terms and conditions upon which the
debt securities will be so convertible or exchangeable;
- any deletions from, modifications of or additions to the Events of
Default or covenants with respect to the debt securities;
- whether the provisions described below under "Defeasance and Covenant
Defeasance" will be applicable to such debt securities; and
- any other terms of such debt securities.
Debt securities may be issued as original issue discount securities (i.e.,
debt securities which provide for declarations of amounts less than the
principal face amount thereof to be due and payable upon acceleration pursuant
to the indenture) to be sold at a substantial discount below their principal
amount. In the event of an acceleration of the maturity of any original issue
discount security, the amount payable to the holder thereof upon such
acceleration will be determined in the manner described in the applicable
prospectus supplement. Material federal income tax and other considerations
applicable to original issue discount securities will be described in the
applicable prospectus supplement.
Under the indentures, the terms of the debt securities of any series may
differ, and SCI, without the consent of the holders of the debt securities of
any series, may reopen a previous series of debt securities and issue additional
debt securities of such series or establish additional terms of such series.
Unless otherwise described in a prospectus supplement relating to any debt
securities, neither indenture contains any provisions that would limit SCI's
ability to incur indebtedness or that would afford holders of debt securities
protection in the event of a sudden and significant decline in the credit
quality of SCI or a takeover, recapitalization or highly leveraged or similar
transaction involving SCI. Accordingly, SCI could in the future enter into
transactions that could increase the amount of indebtedness outstanding at that
time or otherwise affect SCI's capital structure or credit rating. You should
refer to the prospectus supplement relating to a particular series of debt
securities for information regarding any deletions from, modifications of or
additions to the Events of Default described below or covenants contained in the
applicable indenture, including any addition of a covenant or other provisions
providing event risk or similar protection.
CONVERSION AND EXCHANGE
The terms, if any, on which debt securities of any series are convertible
into or exchangeable for shares of common stock, shares of preferred stock or
other securities, whether or not issued by SCI, property or cash, or a
combination of any of the foregoing,
20
<PAGE> 22
will be set forth in the related prospectus supplement. Such terms may include
provisions for conversion or exchange, either mandatory, at the option of the
holder, or at the option of SCI, in which the securities, property or cash to be
received by the holders of the debt securities would be calculated according to
the factors and at such time as described in the related prospectus supplement.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
The subordinated debt securities of each series will, to the extent set
forth in the subordinated indenture, be subordinate in right of payment to the
prior payment in full of all Senior Indebtedness with respect to such series. In
addition, the debt securities are structurally subordinated to all indebtedness
and other liabilities of our subsidiaries. Upon any payment or distribution of
assets of SCI to creditors in connection with a liquidation, dissolution,
winding-up, reorganization, assignment for the benefit of creditors, or
marshalling of assets, or any bankruptcy, insolvency or similar proceedings of
SCI (except in connection with the consolidation or merger of SCI or its
liquidation or dissolution following the conveyance, transfer or lease of its
properties and assets substantially as an entirety, upon the terms and
conditions described under "-- Consolidation, Merger and Sale of Assets"), no
payment on account of principal of, or premium, if any, or interest on or any
other amounts due on the subordinated debt securities, and no redemption,
purchase or other acquisition of the subordinated debt securities may be made
unless full payment of amounts then due on all Senior Indebtedness has been made
or duly provided for pursuant to the terms of the instruments governing the
Senior Indebtedness.
In the event that, notwithstanding the foregoing, the trustee under the
subordinated indenture or the holder of any subordinated debt security receives
any payment or distribution of assets of SCI of any kind or character (excluding
equity or subordinated securities of SCI provided for any plan of reorganization
or readjustment that, in the case of subordinated securities, are subordinated
in right of payment to all Senior Indebtedness to at least the same extent as
the subordinated debt securities are so subordinated), before all Senior
Indebtedness is paid in full, then such payment or distribution will be held in
trust for the holders of Senior Indebtedness and will be required to be paid
over or delivered forthwith to the trustee in bankruptcy or other person making
payment or distribution of assets of SCI for application to the payment of all
Senior Indebtedness remaining unpaid, to the extent necessary to pay the Senior
Indebtedness in full.
By reason of such subordination, in the event of liquidation or insolvency
of SCI, holders of Senior Indebtedness with respect to the subordinated debt
securities of any series and holders of other obligations of SCI that are not
subordinated to such Senior Indebtedness may recover more, ratably, than the
holders of the subordinated debt securities of such series.
Subject to the payment in full of all Senior Indebtedness with respect to
the subordinated debt securities of any series, the rights of the holders of the
subordinated debt securities of such series will be subrogated to the rights of
the holders of such Senior Indebtedness to receive payments or distributions of
cash, property or securities of SCI applicable to such Senior Indebtedness until
the principal of, any premium and interest on, and any additional amounts with
respect to, the subordinated debt securities of such series have been paid in
full.
21
<PAGE> 23
No payment of principal (including redemption and sinking fund payments) of
or any premium or interest on the subordinated debt securities of any series may
be made:
(1) if any Senior Indebtedness with respect to such series is not paid
when due and any applicable grace period with respect to such default has
ended and such default has not been cured or waived or ceased to exist; or
(2) if the maturity of any Senior Indebtedness with respect to such
series has been accelerated because of a default.
In addition, if any default occurs with respect to Designated Senior
Indebtedness (as defined below), other than a payment default on such Designated
Senior Indebtedness, giving the holders of such Designated Senior Indebtedness
the right to accelerate the maturity thereof, and SCI and the trustee under the
subordinated indenture have received written notice thereof from an authorized
person on behalf of any holder of the Designated Senior Indebtedness, then SCI
may not make any payments on account of the subordinated debt securities or on
account of the purchase or redemption or other acquisition of the subordinated
debt securities for a payment blockage period commencing on the date SCI and the
trustee receive such written notice of default and ending on the earliest of:
- 180 days from such date;
- the date, if any, on which the Designated Senior Indebtedness to which
such default relates is discharged or such default is waived or otherwise
cured; and
- the date, if any, on which such blockage period has been terminated by
written notice to SCI or the trustee under the subordinated indenture
from the person who gave the written notice of default.
Unless the holders of the Designated Senior Indebtedness or an authorized
representative of such holders accelerates the maturity of such Designated
Senior Indebtedness, SCI may resume payments on the subordinated debt securities
after the end of the payment blockage period. Not more than one payment blockage
notice may be given in any consecutive 365-day period, irrespective of the
number of defaults with respect to Senior Indebtedness during such period.
The subordinated indenture does not limit or prohibit SCI from incurring
additional Senior Indebtedness, which may include Indebtedness that is senior to
the subordinated debt securities of any series, but subordinate to other
obligations of SCI. The senior debt securities will constitute Senior
Indebtedness with respect to the subordinated debt securities of each series
under the subordinated indenture.
The term "Senior Indebtedness" means, with respect to the subordinated debt
securities, the principal of, interest on and other amounts due on Indebtedness
of SCI, whether outstanding on the date of the subordinated indenture or
thereafter created, incurred, assumed or guaranteed by SCI; unless in the
instrument creating or evidencing or pursuant to which such Indebtedness is
outstanding, it is expressly provided that such Indebtedness is not senior in
right of payment to the subordinated debt securities. Senior Indebtedness
includes, with respect to the obligations described above, interest accruing,
pursuant to the terms of such Senior Indebtedness, on or after the filing of a
petition in bankruptcy or for reorganization relating to SCI, whether or not
post-filing interest is allowed in such proceeding, at the rate specified in the
instrument governing the relevant obligation. Senior Indebtedness will not,
however, include (1) Indebtedness of or amounts owed by SCI for compensation to
employees, or for goods, services or materials purchased in the ordinary course
of business;
22
<PAGE> 24
(2) with certain exceptions, Indebtedness of SCI to a Subsidiary; or (3) any
liability for federal, state, local or other taxes owed by SCI.
The term "Designated Senior Indebtedness" means any Senior Indebtedness
which, at the time of determination, has an aggregate principal amount
outstanding of, or commitments to lend up to, at least $50 million and is
specifically designated by SCI in the instrument evidencing or governing such
Senior Indebtedness as "Designated Senior Indebtedness" for the purposes of the
subordinated indenture.
The subordinated indenture provides that the foregoing subordination
provisions, insofar as they relate to any particular series of subordinated debt
securities, may be changed prior to such issuance. Any such change would be
described in the related prospectus supplement.
REGISTRATION AND TRANSFER
Unless otherwise indicated in the applicable prospectus supplement, each
series of debt securities will be issued in registered form only, without
coupons. The indentures, however, provide that SCI may also issue debt
securities in bearer form only, or in both registered and bearer form. Bearer
securities shall not be offered, sold, resold or delivered in connection with
their original issuance in the United States or to any United States person (as
defined below) other than offices located outside the United States of certain
United States financial institutions. 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,
any estate the income of which is subject to United States federal income
taxation regardless of its source, or any trust whose administration is subject
to the primary supervision of a United States court and which has one or more
United States fiduciaries who have the authority to control all substantial
decisions of the trust, and "United States" means, except as may be set forth in
the prospectus supplement, the United States of America (including the states
thereof and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction. Purchasers of bearer securities will be
subject to certification procedures and may be affected by certain limitations
under United States tax laws. Such procedures and limitations will be described
in the prospectus supplement relating to the offering of the bearer securities.
Unless otherwise indicated in the applicable prospectus supplement,
registered securities will be issued in denominations of $1,000 or any integral
multiple thereof.
Unless otherwise indicated in the applicable prospectus supplement, debt
securities may be surrendered for registration of transfer or exchange at an
office or agency to be maintained by SCI in the Borough of Manhattan, The City
of New York. No service charge shall be made for any registration of transfer or
exchange of debt securities, but SCI may require payment of a sum sufficient to
cover any tax or other governmental charge and any other expenses that may be
imposed in connection therewith.
Unless otherwise indicated in the applicable prospectus supplement, SCI
will not be required to do the following:
- issue, register the transfer of or exchange debt securities of any series
during a period beginning at the opening of business 15 days before any
selection of debt securities of that series of like tenor to be redeemed
and ending at the close of business on the day of giving notice of such
redemption;
23
<PAGE> 25
- register the transfer of or exchange any registered security, or portion
thereof, called for redemption, except the unredeemed portion of any
registered security being redeemed in part;
- exchange any bearer security called for redemption, except to exchange
such bearer security for a registered security of that series and like
tenor that is simultaneously surrendered for redemption; or
- issue, register the transfer of or exchange any debt security that has
been surrendered for repayment at the option of the holder, except the
portion, if any, of such debt security not to be so repaid.
PAYMENT MECHANICS
If interest is due on a debt security on an interest payment date, we will
pay the interest to the person or entity in whose name the debt security is
registered at the close of business on the regular record date (see below)
relating to the interest payment date. If interest is due at maturity but on a
day that is not an interest payment date, we will pay the interest to the person
or entity entitled to receive the principal of the debt security. If principal
or another amount besides interest is due on a debt security at maturity, we
will pay the amount to the holder of the debt security against surrender of the
debt security at a proper place of payment, or in the case of a global security,
in accordance with the applicable policies of the depositary.
PAYMENTS ON GLOBAL SECURITIES. SCI will make payments on a global security
in accordance with the applicable policies of the depositary as in effect from
time to time. Under those policies, SCI will pay directly to the depositary, or
its nominee, and not to any indirect holders who own beneficial interests in the
global security. An indirect holder's right to those payments will be governed
by the rules and practices of the depositary and its participants, as described
under "Legal Ownership of Securities -- Global Securities."
PAYMENTS ON NON-GLOBAL SECURITIES. We will pay interest that is due on an
interest payment date with respect to non-global securities by check mailed on
the interest payment date to the holder at his or her address shown on the
trustee's records as of the close of business on the regular record date. We
will make all other payments by check at the paying agent described below,
against surrender of the debt security. All payments by check will be made in
next-day funds, that is, funds that become available on the day after the check
is cashed.
Alternatively, if a non-global security has a face amount of at least $1
million, and the holder asks SCI to do so, SCI will pay any amount that becomes
due on the debt security by wire transfer of immediately available funds to an
account at a bank in New York City, on the due date. To request wire payment,
the holder must give the paying agent appropriate transfer instructions at least
five business days before the requested wire payment is due. In the case of any
interest payment due on an interest payment date, the instructions must be given
by the person who is the holder on the relevant regular record date. In the case
of any other payment, payment will be made only after the debt security is
surrendered to the paying agent. Any wire instructions, once properly given,
will remain in effect unless and until new instructions are given in the manner
described below.
REGULAR RECORD DATES. SCI will pay interest to the holders listed on the
trustee's records as the owners of the debt securities at the close of business
on a particular day in advance of each interest payment date. Interest will be
paid to these holders if they are listed
24
<PAGE> 26
as the owner even if they no longer own the debt security on the interest
payment date. That particular day, usually about two weeks in advance of the
interest payment date, is called the regular record date and will be identified
in the applicable prospectus supplement.
PAYMENT WHEN OFFICES ARE CLOSED. If any payment is due on a debt security
on a day that is not a business day, SCI will make the payment on the next day
that is a business day. Payments postponed to the next business day in this
situation will be treated under the indenture as if they were made on the
original due date. A postponement of this kind will not result in a default
under any debt security or the indenture, and no interest will accrue on the
postponed amount from the original due date to the next day that is a business
day.
PAYING AGENTS. SCI may appoint one or more financial institutions to act
as its paying agents, at whose designated offices debt securities in non-global
form may be surrendered for payment at their maturity. SCI calls each of these
offices a paying agent. SCI may add, replace or terminate paying agents from
time to time and may also choose to act as its own paying agent. Initially, SCI
will appoint the trustee for each series of debt securities, at its corporate
trust office in New York City, as the paying agent for such series.
BEARER SECURITIES. Unless otherwise indicated in the applicable prospectus
supplement, payment of principal of, premium, if any, and interest, if any, on
bearer securities will be made, subject to any applicable laws and regulations,
at such office or agency outside the United States as specified in the
prospectus supplement and as SCI may designate from time to time. Unless
otherwise indicated in the applicable prospectus supplement, payment of interest
due on bearer securities on any interest payment date will be made only against
surrender of the coupon relating to such interest payment date.
BOOK-ENTRY AND OTHER INDIRECT HOLDERS SHOULD CONSULT WITH THEIR BANKS OR
BROKERS FOR INFORMATION ON HOW THEY WILL RECEIVE PAYMENTS ON THEIR DEBT
SECURITIES.
REDEMPTION AND REPURCHASE
The debt securities of any series may be redeemable at the option of SCI,
may be subject to mandatory redemption pursuant to a sinking fund or otherwise,
or may be subject to repurchase by SCI at the option of the holders, in each
case upon the terms, at the times and at the prices set forth in the applicable
prospectus supplement.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Each indenture restricts SCI's ability to, among other things:
- consolidate;
- merge; or
- transfer or lease substantially all of its assets.
SCI will not consolidate with or merge with or into any other person or,
directly or indirectly, sell, assign, transfer, lease or otherwise convey all or
substantially all its properties and assets substantially as an entirety,
unless:
(a) Either (1) SCI is the surviving corporation or (2) the Person, if
other than SCI, formed by such consolidation or into which SCI is merged or
the Person that acquires by sale, assignment, transfer, lease or other
disposition the properties and assets of SCI
25
<PAGE> 27
substantially as an entirety (A) is a corporation, partnership or trust
organized and validly existing under the laws of the United States, any
state thereof or the District of Columbia and (B) expressly assumes, by a
supplemental indenture in form satisfactory to the trustee under each
indenture, all of SCI's obligations under such indenture and the debt
securities;
(b) the sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of our properties or assets shall
be as an entirety or virtually as an entirety to one corporation and the
corporation assumes all obligations, pursuant to a supplemental indenture
in a form reasonably satisfactory to the trustee, under the debt securities
and the indenture;
(c) Immediately after giving effect to such transaction, no default or
event of default under the indenture has occurred and is continuing; and
(d) SCI delivers, or causes to be delivered, to the trustee under each
indenture, in form and substance reasonably satisfactory to the trustee
under such indenture, an officers' certificate and an opinion of counsel,
each stating that such transaction complies with the requirements of the
indenture.
EVENTS OF DEFAULT
Unless otherwise specified in the applicable prospectus supplement, an
Event of Default with respect to the debt securities of any series is defined in
the applicable indenture as being:
1. default in the payment of any interest on any debt security of such
series when such interest becomes due and payable, and continuance of such
default for a period of 30 days;
2. default in payment of principal or any premium with respect to any
debt security of such series when due;
3. default in making any sinking fund payment or payment under any
analogous provision when due with respect to any debt security of such
series;
4. default by SCI in the performance, or breach, of any other covenant
or warranty in the indenture (other than a covenant or warranty included
therein solely for the benefit of one or more series of debt securities
other than that series) of any debt security of such series which shall not
have been remedied for a period of 60 days after delivery of written notice
to SCI by the trustee or to SCI and the trustee by the holders of not less
than 25% in aggregate principal amount of the debt securities of such
series then outstanding;
5. there occurs with respect to any issue or issues of Indebtedness of
SCI (including an Event of Default under any other series of debt
securities) or any Restricted Subsidiary having an outstanding principal
amount of $50 million or more in the aggregate for all such issues of all
such Persons, whether such Indebtedness exists on the date of the indenture
or created after such date:
(a) an event of default that has resulted in such Indebtedness
becoming due and payable prior to its stated maturity and such
Indebtedness shall not have been discharged in full or such acceleration
shall not have been rescinded or annulled and/or
26
<PAGE> 28
(b) the failure to pay when due principal of or interest on such
Indebtedness within the grace period provided for in such Indebtedness
(which failure continues beyond any applicable grace period);
6. SCI or any of its Restricted Subsidiaries shall fail within 60 days
to pay, bond or otherwise discharge judgements or court orders for the
payment of money the uninsured portion of which exceeds $50 million in the
aggregate, which are not stayed on appeal or are not otherwise being
appropriately contested in good faith;
7. certain events of bankruptcy, insolvency, reorganization, winding
up or liquidation of SCI or any of its Restricted Subsidiaries; or
8. any other Event of Default established in or pursuant to the
applicable indenture for the debt securities of such series.
No Event of Default with respect to any particular series of debt
securities necessarily constitutes an Event of Default with respect to any other
series of debt securities. Each indenture provides that the trustee thereunder
may withhold notice to the holders of the debt securities of any series of the
occurrence of a default with respect to the debt securities of such series
(except a default in payment of principal, premium, if any, interest, if any, or
sinking fund payments, if any) if the trustee considers it in the interest of
the holders to do so.
Each indenture provides that if an Event of Default with respect to any
series of debt securities of the type described in clause (7) with respect to
SCI shall have occurred and be continuing, then the principal of, and accrued
and unpaid interest on, the debt securities of such series will become
immediately due and payable. Each indenture provides that if any other Event of
Default with respect to any series of debt securities issued thereunder shall
have occurred and be continuing, either the trustee or the holders of at least
25% in principal amount of the debt securities of such series then outstanding
may declare the principal amount (or if any debt securities of such series are
original issue discount securities, such lesser amount as may be specified in
the terms thereof) of all the debt securities of such series to be due and
payable immediately. Upon certain conditions such declaration and its
consequences may be rescinded and annulled by the holders of a majority in
principal amount of the debt securities of such series then outstanding except:
- in the case of a continuing default or Event of Default in the payment of
or interest on, or the principal of or premium on, the debt securities of
such series; or
- in respect of any covenant or provision of the applicable indenture or
debt securities which cannot be modified or amended without the consent
of the holder of each debt security affected.
Subject to the provisions of the Trust Indenture Act requiring the trustee,
during an Event of Default under the applicable indenture, to act with the
requisite standard of care, the trustee is under no obligation to exercise any
of its rights or powers under the applicable indenture at the request or
direction of any of the holders of debt securities of any series unless such
holders have offered the trustee reasonable indemnity. Subject to the foregoing,
holders of a majority in principal amount of the then outstanding debt
securities of any series issued under the applicable indenture shall have the
right, subject to certain limitations, to direct the time, method and place of
conducting any proceeding for any remedy available to the trustee under the
indenture with respect to such series. Each indenture requires the annual filing
with the trustee of a certificate by SCI as to whether or not it is in default
under the
27
<PAGE> 29
terms of the indenture, and we are required, upon becoming aware of any default
or Event of Default, to deliver to the trustee for the applicable series of
securities a statement describing the default or Event of Default.
Notwithstanding any other provision of the indentures, the holder of any
debt security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and premium, if any, and interest, if any,
on such debt security on the respective due dates therefor (as the same may be
extended in accordance with the terms of such debt security) and to institute
suit for enforcement of any such payment, and such right shall not be impaired
without the consent of such holder.
CERTAIN DEFINITIONS
"Affiliate" means, with respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" when used with respect to any specified Person, means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have means correlative to the
foregoing.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, partnership interests, participation rights in or other equivalents
(however designated) of such Person's equity (however designated).
"Consolidated Subsidiaries" means, at any date, any Subsidiary or other
entity whose accounts would be consolidated with those of SCI in its
consolidated financial statements if such statements were prepared as of such
date.
"GAAP" means Generally Accepted Accounting Principles as in effect from
time to time, applied on a basis consistent (except for changes concurred in by
SCI's independent public accountants) with the most recent audited consolidated
financial statements of SCI and its Consolidated Subsidiaries.
"Hedging Obligations" means the obligations of any Person under interest
rate swap agreements, interest rate agreements, interest rate collar agreements
or other agreements or arrangements designed to protect such Person against
fluctuations in interest rates or the value of foreign currencies.
"Indebtedness" means (without duplication) (a) any liability of SCI or any
Subsidiary (1) for borrowed money, or under any reimbursement obligation
relating to a letter of credit, or (2) evidenced by a bond, note, debenture or
similar instrument, or (3) for payment obligations arising under any conditional
sale or other title retention arrangement (including a purchase money
obligation) given in connection with the acquisition of any businesses,
properties or assets of any kind, or (4) consisting of the discounted rental
stream properly classified in accordance with GAAP on the balance sheet of SCI
or any Subsidiary, as lessee, as a capitalized lease obligation, or (5) under
Hedging Obligations; (b) any liability of others of a type described in the
preceding clause (a) to the extent that SCI or any Subsidiary has guaranteed or
is otherwise legally obligated in respect thereof; and (c) any amendment,
supplement, modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (a) and (b) above. "Indebtedness"
shall not be construed to include (x) trade payables or credit on open account
to trade creditors incurred in the ordinary course of business or (y)
obligations or liabilities incurred in connection with the
28
<PAGE> 30
sale, transfer or other disposition of property in connection with the
securitization or other asset-based financing thereof; provided however that any
such sale, transfer or other disposition shall be for valid consideration and
shall not be to prefer directly or indirectly any holder of any other obligation
or Indebtedness of SCI or any Subsidiary of SCI as to any such other obligation
or Indebtedness that was already outstanding and did not previously benefit from
a Lien.
"Lien" means, with respect to any asset, any pledge, mortgage, charge,
encumbrance or security interest in respect of such asset; provided that any
transaction (including, without limitation, any sale of accounts receivable)
which is treated as a sale of assets under GAAP shall be so treated and any
asset which is so sold shall not be deemed subject to a Lien. Pursuant to the
indenture, a contractual grant of a right of set-off does not create a Lien in
the absence of an agreement to maintain a balance against which such right may
be exercised.
"Person" means any individual, corporation, partnership, joint venture,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Restricted Subsidiary" means, at any time, each and every Subsidiary which
is a "significant subsidiary" as defined in Rule 1-02(w) of Regulation S-X under
the Securities Act of 1933 and the Securities Exchange Act of 1934 (as currently
in effect).
"Subsidiary" means any corporation, association or other business entity of
which at the time of determination SCI or one or more Subsidiaries owns or
controls more than 50% of the shares of Voting Stock.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes has, or might have, voting power by reason of the
happening of any contingency).
DEFEASANCE AND COVENANT DEFEASANCE
Unless otherwise indicated in the applicable prospectus supplement, SCI
may, at its option and at any time, terminate its obligations with respect to
the debt securities of a particular series and some of the covenants in each
indenture ("defeasance"), subject to the exceptions set forth below. Such
defeasance means that SCI will be deemed to have paid and discharged the entire
Indebtedness represented by the then outstanding debt securities of the
particular series, except for:
- the rights of holders of then outstanding debt securities of the series
to receive payments in respect of the principal of, and premium, if any,
on, and interest on the debt securities when such payments are due;
- SCI's obligations to issue temporary debt securities, register the
transfer or exchange of any debt securities, replace mutilated,
destroyed, lost or stolen debt securities, maintain an office or agency
for payments in respect of the debt securities and segregate and hold
such payments in trust;
- the rights, powers, trusts, duties and immunities of the trustee under
the indenture; and
29
<PAGE> 31
- the defeasance provisions of the applicable indenture.
In addition, unless otherwise indicated in the applicable prospectus
supplement, SCI may, at its option and at any time, elect to terminate its
obligations with respect to certain covenants set forth in each indenture and
any omission to comply with such obligations would not constitute a default or
an event of default with respect to the debt securities ("covenant defeasance").
In order to exercise either defeasance or covenant defeasance,
- SCI must irrevocably deposit or cause to be deposited with the applicable
trustee, as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the holders of the debt
securities of a particular series, money (in U.S. dollars or in the
Foreign Currency in which such debt securities are payable) in an amount,
or Government Obligations (as defined below) that through the scheduled
payment of principal and interest thereon will provide money in an
amount, or a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accounts, to pay and
discharge the principal of, and premium, if any, on, and interest on the
then outstanding debt securities of that series at maturity, or upon
redemption, if applicable, of such principal or installment of interest;
- no default or event of default has occurred and is continuing on the date
of such deposit or, insofar as an event of bankruptcy under clause (7) of
"Events of Default" above is concerned, at any time during the period
ending on the 91st day after the date of such deposit;
- such defeasance or covenant defeasance must not result in a breach or
violation of, or constitute a default under, the indenture or any
material agreement or instrument to which SCI is a party or by which it
is bound or cause the applicable trustee or the trust so created to be
subject to the Investment Company Act of 1940, as amended;
- in the case of defeasance, SCI must deliver to the applicable trustee an
opinion of counsel stating that SCI has received from, or there has been
published by, the Internal Revenue Service a ruling, or since the date
hereof, there has been a change in applicable federal income tax law, to
the effect, and based thereon such opinion must confirm that, the holders
of the outstanding debt securities will not recognize income, gain or
loss for federal income tax purposes as a result of such defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
defeasance had not occurred;
- in the case of covenant defeasance, SCI must have delivered to the
applicable trustee an opinion of counsel to the effect that the holders
of the debt securities outstanding will not recognize income, gain or
loss for federal income tax purposes as a result of such covenant
defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred; and
- SCI must have delivered to the applicable trustee an officers'
certificate and an opinion of counsel, each stating that all conditions
precedent provided for relating to either the defeasance or the covenant
defeasance, as the case may be, have been complied with.
"Foreign Currency" means any currency, currency unit or composite currency,
including, without limitation, the euro, issued by the government of one or more
countries
30
<PAGE> 32
other than the United States of America or by any regional confederation or
association of such governments.
"Government Obligations" means debt securities which are (1) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or any premium or interest on such debt securities or any
Additional Amounts in respect thereof shall be payable, in each case where the
payment or payments thereunder are supported by the full faith and credit of
such government or governments or (2) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America or such other government or governments, in each case where the timely
payment or payments thereunder are unconditionally guaranteed as a full faith
and credit obligation by the United States of America or such other government
or governments. In either case, such obligations may not be callable or
redeemable at the option of the issuer or issuers thereof. Such obligations may
also include a depository receipt issued by a bank or trust company as custodian
with respect to any such Government Obligation or a specific payment of interest
on or principal of or other amount with respect to any such Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or principal of or
other amount with respect to the Government Obligation evidenced by such
depository receipt.
SATISFACTION AND DISCHARGE
The indenture will cease to be of further effect, except as to surviving
rights of registration of transfer or exchange of the debt securities, as
expressly provided for in each indenture, and, upon the request of SCI, the
trustee under each indenture, at the expense of SCI, will execute proper
instruments acknowledging satisfaction and discharge of the indenture when:
(a) either:
(1) all the debt securities theretofore authenticated and delivered
under the indenture, other than destroyed, lost or stolen debt
securities that have been replaced or paid and debt securities that have
been subject to defeasance as described under "Defeasance or Covenant
Defeasance" above have been delivered to the trust under the indenture
for cancellation; or
(2) all debt securities not theretofore delivered to the trust
under the indenture for cancellation:
(A) have become due and payable;
(B) will become due and payable at their maturity within one
year; or
(C) are to be called for redemption within one year under
arrangements satisfactory to the trustee under the indenture for
the giving of notice of redemption by the trustee under the
indenture in the name, and at the expense, of SCI;
and SCI has irrevocably deposited or caused to be deposited with the
trustee under the applicable indenture funds in trust for the purpose in an
amount sufficient to pay and
31
<PAGE> 33
discharge the entire Indebtedness on such debt securities not theretofore
delivered to the trust under the indenture for cancellation, for principal,
and premium, if any, on, and interest to the date of such deposit, in the
case of debt securities that have become due and payable, or to the
maturity or redemption date, as the case may be;
(b) SCI has paid or caused to be paid all sums payable under the
indenture by SCI; and
(c) SCI has delivered to the trustee under the indenture an officers'
certificate and an opinion of counsel, each stating that all conditions
precedent provided in the indenture relating to the satisfaction and
discharge of the indenture have been complied with.
Certain additional provisions of the indenture will continue in effect
following any satisfaction and discharge pursuant to section (a)(2)(B) or (C)
above, including provisions regarding conversion rights, if any, under the debt
securities.
AMENDMENTS AND WAIVERS
Modifications and amendments of each indenture may be made by SCI and the
applicable trustee with the consent of the holders of a majority in aggregate
outstanding principal amount of the debt securities of each series affected by
the modification; provided, however, that no such modification or amendment may,
without the consent of the holder of each outstanding debt security affected
thereby:
(a) change the maturity of the principal of, or any installment of
interest on, any debt security, or reduce the principal amount thereof or
the rate of interest thereon or any premium payable upon the redemption
thereof, or change the place of payment where or change the coin or
currency in which, any debt security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment after the maturity thereof, or, in the case of redemption, on
or after the redemption date;
(b) reduce the percentage in principal amount of outstanding debt
securities of any series, the consent of whose holders is required for any
amendment or for any waiver of compliance with certain provisions of, or
certain defaults and their consequences provided for under the indenture;
(c) modify any of the provisions of the applicable indenture relating
to the subordination of the debt securities in a manner materially adverse
to the holders; or
(d) waive a default in the payment of principal of, or premium, if
any, or interest on the debt securities of any series or reduce the
percentage or of the aggregate principal amount of outstanding debt
securities of any series the consent of whose holders is necessary for
waiver of compliance with certain provisions of the indenture or for waiver
of certain defaults.
The holders of a majority in aggregate principal amount of the debt
securities of any series outstanding may waive compliance with certain
restrictive covenants and provisions of the indenture with respect to that
series of debt securities.
32
<PAGE> 34
Without the consent of any holders, SCI and the trustee under the
indenture, at any time and from time to time, may enter into one or more
indentures supplemental to the indenture governing the debt securities for any
of the following purposes:
(a) to evidence the succession of another person to SCI and the
assumption by any such successor of the covenants of SCI in the indenture
and in the debt securities;
(b) to add to the covenants of SCI for the benefit of the holders, or
to surrender any right or power conferred upon SCI under the indenture;
(c) to add additional Events of Default;
(d) to establish the form or terms of Securities of any series;
(e) to evidence and provide for the acceptance of appointment under
the indenture by a successor trustee under the indenture;
(f) to secure the debt securities;
(g) to cure any ambiguity, defect or inconsistency in a manner that
does not adversely affect the interests of the holders in any material
respect;
(h) to comply with any requirements of the SEC in order to effect and
maintain the qualification of the indenture under the Trust Indenture Act;
or
(i) to make any other change that does not adversely effect the rights
of any holder.
OUTSTANDING DEBT SECURITIES
In determining whether the holders of the requisite principal amount of
outstanding debt securities have given any request, demand, authorization,
direction, notice, consent or waiver under the applicable indenture:
- the portion of the principal amount of an original issue discount
security that shall be deemed to be outstanding for such purposes shall
be that portion of the principal amount thereof that could be declared to
be due and payable upon a declaration of acceleration thereof pursuant to
the terms of such original issue discount security as of the date of such
determination;
- the principal amount of any Indexed Security (i.e. a security the terms
of which provide that the principal amount payable at maturity may be
more or less than the principal face amount at original issuance), that
shall be deemed to be outstanding for such purpose shall be the principal
face amount of such Indexed Security determined on the date of its
original issuance; and
- any debt security owned by SCI or any obligor on such debt security or
any Affiliate of SCI or such other obligor shall be deemed not to be
outstanding.
GOVERNING LAW
The indentures and the debt securities will be governed by, and construed
in accordance with, the laws of the State of New York.
33
<PAGE> 35
REGARDING THE TRUSTEES
The Trust Indenture Act contains limitations on the rights of a trustee,
should it become a creditor of SCI, to obtain payment of claims in certain cases
or to realize on certain property received by it in respect of any such claims,
as security or otherwise. Each trustee is permitted to engage in other
transactions with SCI and its subsidiaries from time to time, provided that if
the trustee acquires any conflicting interest it must eliminate such conflict
upon the occurrence of an Event of Default under the applicable indenture, or
else resign.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 200,500,000 shares. Those shares
consist of (1) 200,000,000 shares designated as common stock, $0.10 par value
per share, and (2) 500,000 shares designated as preferred stock, no par value
per share. The only equity securities currently outstanding are shares of common
stock. As of January 17, 2000, there were 72,372,137 shares of common stock
issued and outstanding.
COMMON STOCK
Our common stock is listed on the New York Stock Exchange under the symbol
"SCI." Holders of common stock are entitled to receive dividends declared by the
Board of Directors, out of funds legally available for the payment of dividends,
subject to the rights of holders of preferred stock and subject to certain
financial covenants contained in our loan agreements. Currently, we are not
paying a dividend. Each holder of common stock is entitled to one vote per
share. Stockholders do not have cumulative voting rights which means that the
holders of a majority of the shares voting for the election of directors can
elect all the directors then standing for election. Upon any liquidation,
dissolution or winding up of our business, the holders of common stock are
entitled to share equally in all assets available for distribution after payment
of all liabilities and provision for liquidation preference of shares of
preferred stock then outstanding. The holders of common stock have no preemptive
rights and no rights to convert their common stock into any other securities.
There are also no redemption or sinking fund provisions applicable to the common
stock. All outstanding shares of common stock are fully paid and nonassessable.
PREFERRED STOCK
The following description of preferred stock and the description of the
terms of a particular series of preferred stock that will be set forth in the
related prospectus supplement are not complete. These descriptions are qualified
in their entirety by reference to the certificate of designation relating to
that series. The rights, preferences, privileges and restrictions of the
preferred stock of each series will be fixed by the certificate of designation
relating to that series. The prospectus supplement also will contain a
description of certain United States federal income tax consequences relating to
the purchase and ownership of the series of preferred stock that is described in
the prospectus supplement.
Each holder of preferred stock is entitled to one vote per share of
preferred stock. The Board of Directors has the authority, without further
action by the stockholders, to issue up to 500,000 shares of preferred stock in
one or more series and to fix the following terms of the preferred stock which
will be specified in the prospectus supplement relating to preferred stock. As
of January 24, 2000, there were no shares of preferred stock outstanding.
34
<PAGE> 36
The prospectus supplement will specify as to each issuance of preferred
stock:
- the maximum number of shares;
- the designation of the shares;
- the annual dividend rate, if any, whether the dividend rate is fixed or
variable, the date dividends will accrue, the dividend payment dates and
whether dividends will be cumulative;
- the price and the terms and conditions for redemption, if any, including
redemption at our option or at the option of the holders, including the
time period for redemption, and any accumulated dividends or premiums;
- the liquidation preference, if any, and any accumulated dividends upon
the liquidation, dissolution or winding up of SCI's affairs;
- any sinking fund or similar provision, and, if so, the terms and
provisions relating to the purpose and operation of the fund;
- the terms and conditions, if any, for conversion or exchange of shares
into or for any other class or classes of our capital stock or any series
of any other class or classes, or into or for any other series of the
same class, or any other securities or assets, including the price or the
rate of conversion or exchange and the method, if any, of adjustment; and
- any or all other preferences and relative, participating, optional or
other special rights, privileges or qualifications, limitations or
restrictions.
Preferred stock will be fully paid and nonassessable upon issuance. The
preferred stock or any series of preferred stock may be represented, in whole or
in part, by one or more global certificates, which will represent an aggregate
number of shares equal to that of the preferred stock represented by the global
certificate.
Each global certificate will:
- be registered in the name of a depositary or a nominee of the depositary
identified in the prospectus supplement;
- be deposited with such depositary or nominee or a custodian for the
depositary; and
- bear a legend regarding any restrictions on exchanges and registration of
transfer and any other matters as may be provided for under the
certificate of designation.
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
SCI may elect to offer depositary shares, each representing a fraction (to
be set forth in the prospectus supplement relating to a particular series of
shares of preferred stock) of a share of a particular series of shares of
preferred stock as described below. In the event SCI elects to do so, depositary
receipts evidencing depositary shares will be issued to the public.
35
<PAGE> 37
The shares of any class or series of shares of preferred stock represented
by depositary shares will be deposited under a deposit agreement among SCI, a
depositary selected by SCI and the holders of the depositary receipts. The
depositary will be a bank or trust company having its principal office in the
United States and having a combined capital and surplus of at least $50,000,000.
Subject to the terms of the deposit agreement, each owner of a depositary share
will be entitled, in proportion to the applicable fraction of a preferred share
represented by such depositary share, to all the rights and preferences of the
shares of preferred stock represented thereby (including dividend, voting,
redemption and liquidation rights).
The depositary shares will be evidenced by depositary receipts issued
pursuant to the deposit agreement. Depositary receipts will be distributed to
those persons purchasing the fractional shares of the related class or series of
shares of preferred stock in accordance with the terms of the offering described
in the related prospectus supplement. Copies of the forms of deposit agreement
and depositary receipt will be filed as exhibits to or incorporated by reference
in the registration statement of which this prospectus forms a part, and the
following summary is qualified in its entirety by reference to such exhibits.
Pending the preparation of definitive depositary receipts, the depositary
may, upon the written order of SCI, issue temporary depositary receipts
substantially identical to (and entitling the holders thereof to all the rights
pertaining to) the definitive depositary receipts but not in definitive form.
Definitive depositary receipts will be prepared thereafter without unreasonable
delay, and temporary depositary receipts will be exchangeable for definitive
depositary receipts without charge to the holder thereof.
DIVIDENDS AND OTHER DISTRIBUTIONS
The depositary will distribute all cash dividends or other distributions
received in respect of the related class or series of shares of preferred stock
to the record holders of depositary shares relating to such class or series of
shares of preferred stock in proportion to the number of such depositary shares
owned by such holders.
In the event of a distribution other than in cash, the depositary will
distribute property received by it to the record holders of depositary shares
entitled thereto, unless the depositary determines that it is not feasible to
make such distribution, in which case the depositary may, with the approval of
SCI, sell such property and distribute the net proceeds from such sale to such
holders.
WITHDRAWAL OF SHARES
Upon surrender of the depositary receipts at the corporate trust office of
the depositary (unless the related depositary shares have previously been called
for redemption), the holder of the depositary shares evidenced thereby is
entitled to delivery of the number of whole shares of the related class or
series of shares of preferred stock and any money or other property represented
by such depositary shares. Holders of depositary shares will be entitled to
receive whole shares of the related class or series of shares of preferred stock
on the basis set forth in the prospectus supplement for such class or series of
shares of preferred stock, but holders of such whole shares of preferred stock
will not thereafter be entitled to exchange them for depositary shares. If the
depositary receipts delivered by the holder evidence a number of depositary
shares in excess of the number of depositary shares representing the number of
whole shares of preferred stock to be withdrawn, the depositary will deliver to
such holder at the same time a new depositary receipt evidencing such excess
number of
36
<PAGE> 38
depositary shares. In no event will fractional shares of preferred stock be
delivered upon surrender of depositary receipts to the depositary.
REDEMPTION OF DEPOSITARY SHARES
Whenever SCI redeems shares of preferred stock held by the depositary, the
depositary will redeem as of the same redemption date the number of depositary
shares representing shares of the related class or series of shares of preferred
stock so redeemed. The redemption price per depositary share will be equal to
the applicable fraction of the redemption price per share payable with respect
to such class or series of shares of preferred stock. If less than all the
depositary shares are to be redeemed, the depositary shares to be redeemed will
be selected by lot or pro rata as may be determined by the depositary.
VOTING THE SHARES OF PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the shares of
preferred stock are entitled to vote, the depositary will mail the information
contained in such notice of meeting to the record holders of the depositary
shares relating to such shares of preferred stock. Each record holder of such
depositary shares on the record date (which will be the same date as the record
date for the shares of preferred stock) will be entitled to instruct the
depositary as to the exercise of the voting rights pertaining to the amount of
the class or series of shares of preferred stock represented by such holder's
depositary shares. The depositary will endeavor, insofar as practicable, to vote
the number of shares of preferred stock represented by such depositary shares in
accordance with such instructions, and SCI will agree to take all action which
the depositary deems necessary in order to enable the depositary to do so. The
depositary will abstain from voting shares of preferred stock to the extent it
does not receive specific instructions from the holders of depositary shares
representing such shares of preferred stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may at any time be amended by agreement
between SCI and the depositary. However, any amendment which materially and
adversely alters the rights of the holders of depositary receipts will not be
effective unless such amendment has been approved by the holders of depositary
receipts representing at least a majority (or, in the case of amendments
relating to or affecting rights to receive dividends or distributions or voting
or redemption rights, 66%, unless otherwise provided in the related prospectus
supplement) of the depositary shares then outstanding. The deposit agreement may
be terminated by SCI or the depositary only (1) if all outstanding depositary
shares have been redeemed, (2) if there has been a final distribution in respect
of the related class or series of shares of preferred stock in connection with
any liquidation, dissolution or winding up of SCI and such distribution has been
distributed to the holders of depositary receipts or (3) upon the consent of
holders of depositary receipts representing not less than 66% of the depositary
shares outstanding.
CHARGES OF DEPOSITARY
SCI will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. SCI will pay charges
of the depositary in connection with the initial deposit of the related class or
series of shares of preferred stock
37
<PAGE> 39
and any redemption of such shares of preferred stock. Holders of depositary
receipts will pay all other transfer and other taxes and governmental charges
and such other charges as are expressly provided in the deposit agreement to be
for their accounts.
The depositary may refuse to effect any transfer of a depositary receipt or
any withdrawal of shares of a class or series of preferred stock evidenced
thereby until all taxes and charges with respect to the depositary receipt or
shares of preferred stock are paid by the holders thereof.
MISCELLANEOUS
The depositary will forward all reports and communications from SCI which
are delivered to the depositary and which SCI is required to furnish to the
holders of the shares of preferred stock.
Neither the depositary nor SCI will be liable if it is prevented or delayed
by law or any circumstance beyond its control in performing its obligations
under the deposit agreement. The obligations of SCI and the depositary under the
deposit agreement will be limited to performance in good faith of their duties
thereunder, and neither SCI nor the depositary will be obligated to prosecute or
defend any legal proceeding in respect of any depositary shares or class or
series of shares of preferred stock unless satisfactory indemnity is furnished.
SCI and the depositary may rely on written advice of counsel or accountants, or
information provided by persons presenting shares of preferred stock for
deposit, holders of depositary shares or other persons believed to be competent
and on the documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may resign at any time by delivering to SCI notice of its
election to do so, and SCI may at any time remove the depositary. Any such
resignation or removal of the depositary will take effect upon the appointment
of a successor depositary, which successor must be appointed within 60 days
after delivery of the notice of resignation or removal and must be a bank or
trust company having its principal office in the United States and having a
combined capital and surplus of at least $50,000,000.
DESCRIPTION OF WARRANTS
SCI has no warrants outstanding (other than options issued under its
employee stock option plans). SCI may issue warrants for the purchase of debt
securities, common stock or preferred stock. Warrants may be issued
independently or together with any other securities offered by any prospectus
supplement and may be attached to or separate from such securities. Each series
of warrants will be issued under a separate warrant agreement to be entered into
between SCI and a warrant agent specified in the applicable prospectus
supplement. The warrant agent will act solely as an agent of SCI in connection
with the warrants of such series and will not assume any obligation or
relationship of agency or trust for or with any holders of the warrants. Further
terms of the warrants and the applicable warrant agreements will be set forth in
the applicable prospectus supplement. Copies of the form of warrant agreement
and warrant will be filed as exhibits to or incorporated by reference in the
registration statement of which this prospectus forms a part, and the following
summary is qualified in its entirety by reference to such exhibits.
38
<PAGE> 40
The applicable prospectus supplement will describe the terms of the
warrants, including, where applicable, the following:
- the title of the warrants;
- the aggregate number of warrants;
- the price or prices at which warrants will be issued;
- the designation, terms and number of securities purchasable upon exercise
of warrants;
- the designation and terms of the securities, if any, with which warrants
are issued and the number of warrants issued with each security;
- the date, if any, on and after which warrants and the related securities
will be separately transferable;
- the price at which each security purchasable upon exercise of warrants
may be purchased;
- the date on which the right to exercise the warrants shall commence and
the date on which that right shall expire;
- the minimum or maximum amount of warrants which may be exercised at any
one time;
- information with respect to book-entry procedures, if any; and
- any other terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the warrants.
39
<PAGE> 41
PLAN OF DISTRIBUTION
We may offer and sell the securities directly, to or through underwriting
syndicates represented by managing underwriters, to or through underwriters
without a syndicate or through dealers or agents. The prospectus supplement with
respect to the offered securities will set forth the terms of the offering,
including the following:
- the name or names of any underwriters, dealers or agents;
- the purchase price and the proceeds we will receive from the sale;
- any underwriting discounts, agency fees and other items constituting
underwriters' or agents' compensation; and
- the initial public offering price and any discounts or concessions
allowed, re-allowed or paid to dealers.
If any underwriters are involved in the offer and sale, the securities will
be acquired by the underwriters and may be resold by them, either at a fixed
public offering price established at the time of offering or from time to time
in one or more negotiated transactions or otherwise, at prices related to
prevailing market prices determined at the time of sale. Unless otherwise set
forth in the applicable prospectus supplement, the obligations of the
underwriters to purchase the securities will be subject to conditions precedent
and the underwriters will be obligated to purchase all the securities described
in the prospectus supplement if any are purchased. Any initial public offering
price and any discounts or concessions allowed or re-allowed or paid to dealers
may be changed from time to time.
We may offer and sell the securities directly or through an agent or agents
designated by us from time to time. An agent may sell securities it has
purchased from us as principal to other dealers for resale to investors and
other purchasers, and may reallow all or any portion of the discount received in
connection with the purchase from us to the dealers. After the initial offering
of the securities, the offering price (in the case of securities to be resold at
a fixed offering price), the concession and the discount may be changed. Any
agent participating in the distribution of the securities may be deemed to be an
"underwriter," as that term is defined in the Securities Act of 1933, of the
securities so offered and sold.
If any underwriters are involved in the offer and sale, they will be
permitted to engage in transactions that maintain or otherwise affect the price
of the securities. These transactions may include over-allotment transactions,
purchases to cover short positions created by the underwriter in connection with
the offering and the imposition of penalty bids. If an underwriter creates a
short position in the securities in connection with the offering, i.e., if it
sells more securities than set forth on the cover page of the applicable
prospectus supplement, the underwriter may reduce that short position by
purchasing the securities in the open market. In general, purchases of a
security to reduce a short position could cause the price of the security to be
higher than it might be in the absence of such purchases. As noted above,
underwriters may also choose to impose penalty bids on other underwriters and/or
selling group members. This means that if underwriters purchase securities on
the open market to reduce their short position or to stabilize the price of the
securities, they may reclaim the amount of the selling concession from those
underwriters and/or selling group members who sold such securities as part of
the offering.
Neither we nor any underwriter make any representation or prediction as to
the direction or magnitude of any effect that the transactions described above
may have on the price of the
40
<PAGE> 42
securities. In addition, neither we nor any underwriter make any representation
that such underwriter will engage in such transactions or that such
transactions, once commenced, will not be discontinued without notice.
Underwriters, dealers and agents may be entitled, under agreements entered
into with us, to indemnification by us against some liabilities, including
liabilities under the Securities Act of 1933.
The place and time of delivery for the securities in respect of which this
prospectus is delivered will be set forth in the applicable prospectus
supplement if appropriate.
Unless otherwise indicated in the prospectus supplement, each series of
offered securities will be a new issue of securities and, other than the common
stock, which is listed on the NYSE, for which there currently is no market. Any
underwriters to whom securities are sold for public offering and sale may make a
market in such series of securities as permitted by applicable laws and
regulations, but such underwriters will not be obligated to do so, and any such
market making may be discontinued at any time without notice. Accordingly, there
can be no assurance as to the development or liquidity of any market for the
securities. The securities may or may not be listed on a national securities
exchange or for quotation through the National Association of Securities Dealers
Automated Quotation System.
Underwriters, agents and dealers may engage in transactions with or perform
services, including various investment banking and other services, for us and/or
any of our affiliates in the ordinary course of business.
LEGAL MATTERS
Michael M. Sullivan, Esq., our Secretary and Corporate Counsel, will issue
an opinion for us with respect to the validity of the securities offered hereby.
Any underwriters, dealers or agents will be advised about issues relating to
this offering by their own legal counsel.
EXPERTS
The consolidated audited financial statements incorporated in this
prospectus by reference to our Annual Report on Form 10-K for the year ended
June 30, 1999, have been so incorporated in reliance on the report of Ernst &
Young LLP, independent accountants, given on the authority of that firm as
experts in auditing and accounting.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Those reports, proxy statements and other information
may be obtained:
- At the Public Reference Room of the SEC, Room 1024-Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549;
- At the public reference facilities at the SEC's regional offices located
at Seven World Trade Center, 13th Floor, New York, New York 10048 or
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661;
41
<PAGE> 43
- From the SEC, Public Reference Section, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549;
- At the offices of The New York Stock Exchange, 20 Broad Street, New York,
New York 10005; and
- From the Internet site maintained by the SEC at http://www.sec.gov, which
contains reports, proxy and information statements and other information
regarding issuers that file electronically with the SEC.
Some locations may charge prescribed or modest fees for copies.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
until we sell all of the securities, or after the date of this initial
registration statement and before the effectiveness of the registration
statement.
- Annual Report on Form 10-K for the year ended June 30, 1999 (including
information specifically incorporated by reference into our Form 10-K
from our definitive Proxy Statement for our 1999 Annual Meeting of
Stockholders).
- Quarterly Report on Form 10-Q for the quarter ended September 26, 1999.
- The description of SCI's common stock contained in SCI's registration
statement on Form 8-A filed with the SEC on March 18, 1997.
On request we will provide at no cost to each person, including any
beneficial owner, who receives a copy of this prospectus, a copy of any or all
of the documents incorporated in this prospectus by reference. We will not
provide exhibits to any of such documents, however, unless such exhibits are
specifically incorporated by reference into those documents. Written or
telephone requests for such copies should be addressed to our Treasurer, Ronald
G. Sibold, c/o SCI Systems (Alabama) Inc., P. O. Box 1000, Huntsville, Alabama
35807, telephone number (256) 882-4131.
42
<PAGE> 44
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Set forth below is an estimate (other than the SEC Registration Fee) of the
fees and expenses all of which are payable by the Registrant, in connection with
the registration and sale of the securities being registered:
<TABLE>
<S> <C>
Commission Registration Fee................................. $211,200
Trustee's Fees and Expenses................................. 25,000
Rating Agencies' Fees....................................... 80,000
Transfer Agent and Registrar Fees and Expenses.............. 15,000
Legal Fees and Expenses..................................... 250,000
Accounting Fees and Expenses................................ 50,000
Printing, Engraving and Mailing Expenses.................... 100,000
Miscellaneous............................................... 18,000
--------
Total............................................. $750,000
========
</TABLE>
- -------------------------
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As authorized by Section 145 of the General Corporation Law of the State of
Delaware ("DGCL"), each director and officer of the Registrant may be
indemnified by the Registrant against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with the defense or settlement of any threatened, pending or
completed legal proceedings in which he is involved by reason of the fact that
he is or was a director or officer of the Registrant if he acted in good faith
and in a manner that he reasonably believed to be in or not opposed to the best
interests of the Registrant and, with respect to any criminal action or
proceeding, if he had no reasonable cause to believe that his conduct was
unlawful. If the legal proceeding, however, is by or in the right of the
Registrant, the director or officer may not be indemnified in respect of any
claim, issue or matter as to which he shall have been adjudged to be liable to
the Registrant unless a court determines otherwise.
Article Tenth of the Registrant's Certificate of Incorporation provides for
mandatory indemnification of the Registrant's directors, officers and employees
and the Registrant's Bylaws provide for permissible indemnification of other
agents to the maximum extent permitted by the DGCL. The Registrant has entered
into Indemnification Agreements with its officers and directors with further
indemnification to the maximum extent permitted by the DGCL.
The general effect of the foregoing provisions may be to reduce the
circumstances in which an officer or director may be required to bear the
economic burden of the foregoing liabilities and expense.
II-1
<PAGE> 45
The form(s) of proposed Underwriting Agreement(s) to be filed as (an)
Exhibit(s) hereto or incorporated by reference herein may include provisions
regarding the indemnification of our officers and directors by the several
Underwriters.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S> <C>
1.1 -- Form of Underwriting Agreement*
4.1 -- Form of Senior Indenture*
4.2 -- Form of Subordinated Indenture*
4.3 -- Form of Senior Debt Security**
4.4 -- Form of Subordinated Debt Security**
4.5 -- Form of Supplemental Indenture to Exhibit 4.3**
4.6 -- Form of Preferred Stock Certificate of Designation**
4.7 -- Form of Warrant**
4.8 -- Form of Warrant Agreement**
4.9 -- Form of Deposit Agreement**
5.1 -- Opinion of Michael M. Sullivan*
12.1 -- Computation of Ratio of Earnings to Fixed Charges***
23.1 -- Consent of Ernst & Young, LLP***
23.2 -- Consent of Michael M. Sullivan (included in Exhibit 5.1)*
24.1 -- Power of Attorney of certain directors and officers of SCI
***
25.1 -- Form T-1 Statement of Eligibility of Trustee for Senior
Indenture under the Trust Indenture Act of 1939*
25.2 -- Form T-1 Statement of Eligibility of Trustee for
Subordinated Indenture under the Trust Indenture Act of
1939*
</TABLE>
- -------------------------
*Filed herewith.
**To be filed with a Current Report on Form 8-K or a Post-Effective Amendment
to Registration Statement.
***Previously filed.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act,
II-2
<PAGE> 46
(b) 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 the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement,
(c) 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 clauses (a) and (b) do not apply if the
information required to be included in a post-effective amendment by
such clauses is contained in periodic reports filed with or furnished to
the Securities and Exchange Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") that are incorporated by reference in the Registration
Statement.
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
4. That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to its Certificate of Incorporation, Bylaws, by agreement or
otherwise, the Registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE> 47
The undersigned Registrant hereby undertakes that:
1. For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance on Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
Rule 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective; and
2. For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
The undersigned Registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Act.
II-4
<PAGE> 48
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 its
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Huntsville, Alabama on February 3, 2000.
SCI SYSTEMS, INC.
By: /s/ A. EUGENE SAPP, JR.
-----------------------------------
Name: A. Eugene Sapp, Jr.
Title: President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act, as amended, this
Amendment to the Registration Statement has been signed by the following persons
in the capacities indicated on February 3, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ A. EUGENE SAPP, JR. President, Chief Executive Officer
- ----------------------------------------------------- and Director (Principal Executive
A. Eugene Sapp, Jr. Officer)
/s/ JAMES E. MOYLAN, JR.* Senior Vice President and Chief
- ----------------------------------------------------- Financial Officer (Principal
James E. Moylan, Jr. Financial Officer)
/s/ JOHN M. NOLL* Assistant Vice President and
- ----------------------------------------------------- Corporate Controller (Principal
John M. Noll* Accounting Officer)
/s/ OLIN B. KING* Chairman and Director
- -----------------------------------------------------
Olin B. King
/s/ HOWARD H. CALLAWAY* Director
- -----------------------------------------------------
Howard H. Callaway
/s/ WILLIAM E. FRUHAN* Director
- -----------------------------------------------------
William E. Fruhan
/s/ WAYNE SHORTRIDGE* Director
- -----------------------------------------------------
Wayne Shortridge
/s/ G. ROBERT TODD* Director
------------------------------------------------
G. Robert Todd
</TABLE>
II-5
<PAGE> 49
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ JACKIE M. WARD* Director
------------------------------------------------
Jackie M. Ward
*By: /s/ MICHAEL M. SULLIVAN
------------------------------------------
Michael M. Sullivan
Attorney-in-Fact
</TABLE>
II-6
<PAGE> 50
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <C> <S>
1.1 -- Form of Underwriting Agreement*
4.1 -- Form of Senior Indenture*
4.2 -- Form of Subordinated Indenture*
4.3 -- Form of Senior Debt Security**
4.4 -- Form of Subordinated Debt Security**
4.5 -- Form of Supplemental Indenture to Exhibit 4.3**
4.6 -- Form of Preferred Stock Certificate of Designation**
4.7 -- Form of Warrant**
4.8 -- Form of Warrant Agreement**
4.9 -- Form of Deposit Agreement**
5.1 -- Opinion of Michael M. Sullivan*
12.1 -- Computation of Ratio of Earnings to Fixed Charges***
23.1 -- Consent of Ernst & Young, LLP***
23.2 -- Consent of Michael M. Sullivan (included in Exhibit 5.1)*
24.1 -- Power of Attorney of certain directors and officers of SCI
***
25.1 -- Form T-1 Statement of Eligibility of Trustee for Senior
Indenture under the Trust Indenture Act of 1939*
25.2 -- Form T-1 Statement of Eligibility of Trustee for
Subordinated Indenture under the Trust Indenture Act of
1939*
</TABLE>
- -------------------------
* Filed herewith.
** To be filed with a Current Report on Form 8-K or a Post-Effective Amendment
to Registration Statement.
*** Previously filed.
<PAGE> 1
SCI Systems, Inc.
[% [Debentures/Notes Due] __]
Form of Underwriting Agreement
New York, New York
, 20
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
SCI Systems, Inc., a corporation organized under the laws of
Delaware (the "Company"), proposes to sell to the several underwriters named in
Schedule II hereto (the "Underwriters"), for whom you (the "Representatives")
are acting as representatives, the principal amount of its securities identified
in Schedule I hereto (the "Securities"), to be issued under an indenture (the
"Indenture") dated as of , 20 , between the Company and ,
as trustee (the "Trustee"). To the extent there are no additional Underwriters
listed on Schedule I other than you, the term Representatives as used herein
shall mean you, as Underwriters, and the terms Representatives and Underwriters
shall mean either the singular or plural as the context requires. Any reference
herein to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference. Certain terms used herein are defined
in Section 17 hereof.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter as set forth below
in this Section 1.
(a) The Company meets the requirements for use of Form
S-3 under the Act and has prepared and filed with the Commission a
registration statement (the file number of which is set forth in
Schedule I hereto) on Form S-3, including a
<PAGE> 2
2
related basic prospectus, for registration under the Act of the
offering and sale of the Securities. The Company may have filed one or
more amendments thereto, including a Preliminary Final Prospectus, each
of which has previously been furnished to you. The Company will next
file with the Commission one of the following: (1) after the Effective
Date of such registration statement, a final prospectus supplement
relating to the Securities in accordance with Rules 430A and 424(b),
(2) prior to the Effective Date of such registration statement, an
amendment to such registration statement (including the form of final
prospectus supplement) or (3) a final prospectus in accordance with
Rules 415 and 424(b). In the case of clause (1), the Company has
included in such registration statement, as amended at the Effective
Date, all information (other than Rule 430A Information) required by
the Act and the rules thereunder to be included in such registration
statement and the Final Prospectus. As filed, such final prospectus
supplement or such amendment and form of final prospectus supplement
shall contain all Rule 430A Information, together with all other such
required information, and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or,
to the extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final Prospectus)
as the Company has advised you, prior to the Execution Time, will be
included or made therein. The Registration Statement, at the Execution
Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did
or will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined
herein), the Final Prospectus (and any supplement thereto) will, comply
in all material respects with the applicable requirements of the Act,
the Exchange Act and the Trust Indenture Act and the respective rules
thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did not or will not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date the Indenture
did or will comply in all material respects with the applicable
requirements of the Trust Indenture Act and the rules thereunder; and,
on the Effective Date, the Final Prospectus, if not filed pursuant to
Rule 424(b), will not, and on the date of any filing pursuant to Rule
424(b) and on the Closing Date, the Final Prospectus (together with any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to (i) that part of
the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of the Trustee or (ii) the
<PAGE> 3
3
information contained in or omitted from the Registration Statement or
the Final Prospectus (or any supplement thereto) in reliance upon and
in conformity with information furnished in writing to the Company by
or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto).
(c) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, without
taking account of any exemption arising out of the number of holders of
the Company's securities, and, if the Company conducts its business as
set forth in the Final Prospectus, will not become an "investment
company" and will not be required to be registered under the Investment
Company Act.
(d) Each "significant subsidiary" (as defined in Rule
1-02(w) of Regulation S-X under the Act and the Exchange Act) of the
Company is included in Schedule III hereto.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth, the Company agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at the purchase
price set forth in Schedule I hereto the principal amount of the Securities set
forth opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made on the date and at the time specified in Schedule I
hereto or at such time on such later date not more than three Business Days
after the foregoing date as the Representatives shall designate, which date and
time may be postponed by agreement between the Representatives and the Company
or as provided in Section 9 hereof (such date and time of delivery and payment
for the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to the public as
set forth in the Final Prospectus.
<PAGE> 4
4
5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus
or any Rule 462(b) Registration Statement unless the Company has
furnished you a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Registration
Statement has become or becomes effective pursuant to Rule 430A, or
filing of the Final Prospectus is otherwise required under Rule 424(b),
the Company will cause the Final Prospectus, properly completed, and
any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. The Company will promptly advise the Representatives (1)
when the Registration Statement, if not effective at the Execution
Time, shall have become effective, (2) when the Final Prospectus, and
any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission, (3) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (4)
of any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement, or
for any supplement to the Final Prospectus or for any additional
information, (5) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (1) notify the
Representatives of such event, (2) prepare and file with the
Commission, subject
<PAGE> 5
5
to the second sentence of paragraph (a) of this Section 5, an amendment
or supplement which will correct such statement or omission or effect
such compliance and (3) supply any supplemented Final Prospectus to you
in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the Representatives
an earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of each Preliminary
Final Prospectus and the Final Prospectus and any supplement thereto as
the Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to
the offering.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Securities and will pay any fee of the National Association of
Securities Dealers, Inc., in connection with its review of the
offering; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the offering or sale
of the Securities, in any jurisdiction where it is not now so subject.
(f) The Company will not, without the prior written
consent of , offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to
cash settlement or otherwise) by the Company or any affiliate of the
Company or any person in privity with the Company or any affiliate of
the Company) directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, any debt securities issued
or guaranteed by the Company (other than the Securities) or publicly
announce an intention to effect any such transaction, until the
Business Day set forth on Schedule I hereto.
<PAGE> 6
6
(g) The Company will not take, directly or indirectly,
any action designed to or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
6. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Securities shall be subject
to the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the Representatives agree
in writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time, on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or (ii)
9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) The Company shall have requested and caused ,
counsel for the Company, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives,
to the effect that:
(i) each of the Company and (individually a
"Subsidiary" and collectively the "Subsidiaries") has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which it
is chartered or organized, with full corporate power and
authority to own or lease, as the case may be, and to operate
its properties and conduct its business as described in the
Final Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of
each jurisdiction which requires such qualification;
(ii) all the outstanding shares of capital stock
of each Subsidiary have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Final Prospectus, all outstanding
shares of capital stock of the Subsidiaries are owned by the
<PAGE> 7
7
Company either directly or through wholly owned subsidiaries
free and clear of any perfected security interest and, to the
knowledge of such counsel, after due inquiry, any other
security interest, claim, lien or encumbrance;
(iii) the Company's authorized equity capitalization is as
set forth in the Final Prospectus; [and] the Securities conform
in all material respects to the description thereof contained
in the Final Prospectus; [the Securities are duly listed, and
admitted and authorized for trading subject to official notice
of issuance [and evidence of satisfactory distribution] on the
Stock Exchange], and, except as set forth in the
Final Prospectus, no options, warrants or other rights to
purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for,
shares of capital stock of or ownership interests in the Company
are outstanding;
(iv) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture
Act, and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms
(subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors' rights generally from time to time in
effect and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith
and fair dealing, regardless of whether considered in a
proceeding in equity or at law); and the Securities have been
duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters pursuant to this Agreement,
will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture;
(v) to the knowledge of such counsel, there is no pending
or threatened action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries or its or
their property, of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Final Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as
an exhibit thereto, which is not described or filed as
required; and the statements included or incorporated by
reference in the Final Prospectus under the heading[s] "Certain
Federal Income Tax Considerations" [and [add other sections
which discuss specific legal or regulatory matters or
proceedings]] fairly summarize the matters therein described;
<PAGE> 8
8
(vi) the Registration Statement has become
effective under the Act; any required filing of the Basic
Prospectus, any Preliminary Final Prospectus and the Final
Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time period
required by Rule 424(b); to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose
have been instituted or threatened, and the Registration
Statement and the Final Prospectus (other than the financial
statements and other financial information contained therein,
as to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements
of the Act, the Exchange Act and the Trust Indenture Act and
the respective rules thereunder; and such counsel has no
reason to believe that on the Effective Date or the date the
Registration Statement was last deemed amended the
Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus as of its
date and on the Closing Date included or includes any untrue
statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements
and other financial information contained therein, as to which
such counsel need express no opinion);
(vii) this Agreement has been duly authorized,
executed and delivered by the Company;
(viii) the Company is not and, after giving effect
to the offering and sale of the Securities and the application
of the proceeds thereof as described in the Final Prospectus,
will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended;
(ix) no consent, approval, authorization, filing
with or order of any court or governmental agency or body is
required in connection with the transactions contemplated
herein, except such as have been obtained under the Act and
such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution
of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Final Prospectus and
such other approvals (specified in such opinion) as have been
obtained;
(x) neither the execution and delivery of the
Indenture, the issue and sale of the Securities, nor the
consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof
<PAGE> 9
9
will conflict with, result in a breach or violation of or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or its subsidiaries pursuant
to, (i) the charter or by-laws of the Company or its
subsidiaries, (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement
or other agreement, obligation, condition, covenant or
instrument to which the Company or its subsidiaries is a party
or bound or to which its or their property is subject, or
(iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or its subsidiaries of any
court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over
the Company or its subsidiaries or any of its or their
properties; and
(xi) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of New York, the General Corporation Law of the State of Delaware
or the Federal laws of the United States, to the extent they deem
proper and specified in such opinion, upon the opinion of other counsel
of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. References to the Final
Prospectus in this paragraph (b) include any supplements thereto at the
Closing Date.
(c) The Representatives shall have received from
, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date and addressed to the Representatives, with respect to
the issuance and sale of the Securities, the Indenture, the
Registration Statement, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives
may reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(d) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the Chairman of
the Board or the President and the principal financial or accounting
officer of the Company, dated the Closing Date, to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Final Prospectus, any supplements to the Final
Prospectus and this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the
<PAGE> 10
10
Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the Final
Prospectus (exclusive of any supplement thereto), there has
been no material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(e) The Company shall have requested and caused Ernst &
Young LLP to have furnished to the Representatives, at the Execution
Time and at the Closing Date, letters, (which may refer to letters
previously delivered to one or more of the Representatives), dated
respectively as of the Execution Time and as of the Closing Date, in
form and substance satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable rules and regulations
adopted by the Commission thereunder and [that they have performed a
review of the unaudited interim financial information of the Company
for the -month period ended , 20 , and as at ,
20 , in accordance with Statement on Auditing Standards No. 71,] and
stating in effect, except as provided in Schedule I hereto, that:
(i) in their opinion the audited financial
statements and financial statement schedules [and pro forma
financial statements] included or incorporated by reference in
the Registration Statement and the Final Prospectus and
reported on by them comply as to form in all material respects
with the applicable accounting requirements of the Act and the
Exchange Act and the related rules and regulations adopted by
the Commission;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; [their limited review, in accordance
with standards established under Statement on Auditing
Standards No. 71, of the unaudited interim financial
information for the -month period ended , 20
and as at , 20 [, as indicated in their report
dated , 20 incorporated by reference in the Registration
Statement and the Final Prospectus];]
<PAGE> 11
11
carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
stockholders, directors and [the executive and audit]
committees of the Company and the Subsidiaries; and inquiries
of certain officials of the Company who have responsibility
for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to
, 20 , nothing came to their attention which
caused them to believe that:
(1) any unaudited financial statements
included or incorporated by reference in the
Registration Statement and the Final Prospectus do
not comply as to form in all material respects with
applicable accounting requirements of the Act and
with the related rules and regulations adopted by the
Commission with respect to financial statements
included or incorporated by reference in quarterly
reports on Form 10-Q under the Exchange Act; and said
unaudited financial statements are not in conformity
with generally accepted accounting principles applied
on a basis substantially consistent with that of the
audited financial statements included or incorporated
by reference in the Registration Statement and the
Final Prospectus;
(2) with respect to the period
subsequent to , 20 , there were any
changes, at a specified date not more than five days
prior to the date of the letter, in the long-term
debt of the Company and its subsidiaries or capital
stock of the Company or decreases in the
stockholders' equity of the Company as compared with
the amounts shown on the , 20 consolidated
balance sheet included or incorporated by reference
in the Registration Statement and the Final
Prospectus, or for the period from , 20
to such specified date there were any decreases, as
compared with in net sales or income from continuing
operations before income taxes or in total or per
share amounts of net income of the Company and its
subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the
Representatives;
(3) the information included or
incorporated by reference in the Registration
Statement and Final Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data),
Item 302
<PAGE> 12
12
(Supplementary Financial Information), Item 402
(Executive Compensation) and Item 503(d) (Ratio of
Earnings to Fixed Charges) is not in conformity with
the applicable disclosure requirements of Regulation
S-K; [or] [and]
(4) [the unaudited amounts of [insert
capsule information, if any] do not agree with the
amounts set forth in the unaudited financial
statements for the same periods or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
financial statements included or incorporated by
reference in the Registration Statement and the Final
Prospectus; and]
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus and in Exhibit 12 to the
Registration Statement, including the information set forth
under the captions " " and " " in the Final
Prospectus, the information included or incorporated by
reference in Items [1, 2, 6, 7 and 11] of the Company's Annual
Report on Form 10-K, incorporated by reference in the
Registration Statement and the Final Prospectus, [and] [the
information included in the "Management's Discussion and
Analysis of Results of Operations and Financial Condition"
included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q, incorporated by reference in
the Registration Statement and the Final Prospectus], agrees
with the accounting records of the Company and its
subsidiaries, excluding any questions of legal
interpretation[; and][.]
(iv) [on the basis of a reading of the unaudited
pro forma financial statements included or incorporated by
reference in the Registration Statement and the Final
Prospectus (the "pro forma financial statements"); carrying
out certain specified procedures; inquiries of certain
officials of the Company [and ] who have responsibility
for financial and accounting matters; and proving the
arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the pro forma
financial statements, nothing came to their attention which
caused them to believe that the pro forma financial statements
do not comply as to form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation
S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of such
statements.]
<PAGE> 13
13
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities
as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(g) Subsequent to the Execution Time, there shall not
have been any decrease in the rating of any of the Company's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act) or
any notice given of any intended or potential decrease in any such
rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
[(i) The Securities shall have been listed and admitted
and authorized for trading on the Stock Exchange, and
satisfactory evidence of such actions shall have been provided to the
Representatives.]
[Insert additional closing conditions, if any, such as any concurrent offering
closing, repayment of debt, recapitalization, reorganization, credit facility
closing, additional borrowing, acquisition closing and stock split.]
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
<PAGE> 14
14
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of , counsel for the Underwriters, at
[Underwriters' counsel's address], on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale
of the Securities provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or because
of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through on demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion therein.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the
Company within the meaning
<PAGE> 15
15
of either the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the Company by or
on behalf of such Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have. The Company acknowledges that the statements set forth [in
the last paragraph of the cover page regarding delivery of the Securities, the
legend in block capital letters on page [2] related to stabilization, syndicate
covering transactions and penalty bids] and, under the heading "Underwriting" or
"Plan of Distribution", (i) the list of Underwriters and their respective
participation in the sale of the Securities, (ii) the sentences related to
concessions and reallowances and (iii) the paragraph related to stabilization,
syndicate covering transactions and penalty bids in any Preliminary Final
Prospectus and the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Final Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at
<PAGE> 16
16
the expense of the indemnifying party. An indemnifying party will not, without
the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting discount
or commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
of the Underwriters on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by
it, and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one hand or
the Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the
<PAGE> 17
17
meaning of either the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities agreed to
be purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
principal amount of Securities set forth opposite their names in Schedule II
hereto bears to the aggregate principal amount of Securities set forth opposite
the names of all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate principal amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate principal amount of Securities set forth in Schedule
II hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if
such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Company's Common Stock shall have
been suspended by the Commission [or the Stock Exchange] [or the
Nasdaq National Market] or trading in securities generally on the New York Stock
Exchange [or the Stock Exchange] [or the Nasdaq National Market]
shall have been suspended or limited or minimum prices shall have been
established on [either of] such Exchange[s] [or the Nasdaq National Market],
(ii) a banking moratorium shall have been declared either by Federal or New York
State authorities or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or war,
or other calamity or crisis the effect of which on financial markets is such as
to make it, in the sole judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Prospectus (exclusive of any supplement thereto).
<PAGE> 18
18
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the Representatives, will
be mailed, delivered or telefaxed to the General Counsel (fax no.: )
and confirmed to the General Counsel, , at [insert address], Attention:
General Counsel; or, if sent to the Company, will be mailed, delivered or
telefaxed to [facsimile number] and confirmed to it at [insert address],
attention of the Legal Department.
13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors and
the officers, directors, employees, agents and controlling persons referred to
in Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in
this Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and
the rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City [or ____________].
<PAGE> 19
19
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus, together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to
such rules under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
<PAGE> 20
20
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended and the rules and regulations of the Commission
promulgated thereunder.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
SCI Systems, Inc.
By:
----------------------
Name:
Title:
<PAGE> 21
21
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[name of co-manager, if any]
By:
By:
-------------------------------------
Name:
Title:
For [itself] [themselves] and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE> 22
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include accrued
interest or amortization, if
any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location: , 20 at 10:00 a.m. at
[name and address of Underwriters' counsel]
Type of Offering: Non-delayed
Date referred to in Section 5(f) after which the Company may offer or sell debt
securities issued or guaranteed by the Company without the consent of the
Representative(s):
Modification of items to be covered by the letter from
Ernst & Young LLP delivered pursuant to
Section 6(e) at the Execution Time:
<PAGE> 23
SCHEDULE II
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT
UNDERWRITERS OF SECURITIES
- ------------ TO BE PURCHASED
---------------
<S> <C> <C>
------------------
------------
Total................... $
============
</TABLE>
<PAGE> 24
SCHEDULE III
Significant Subsidiaries
<PAGE> 1
FORM OF SENIOR INDENTURE
Exhibit 4.1
================================================================================
SCI SYSTEMS, INC.,
Issuer
TO
---------------,
Trustee
Indenture
Dated as of ______________________
---------------
Senior Debt Securities
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..............................................1
SECTION 101. DEFINITIONS.......................................................................................1
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.............................................................12
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE...........................................................13
SECTION 104. ACTS OF HOLDERS..................................................................................13
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY............................................................15
SECTION 106. NOTICE TO HOLDERS; WAIVER........................................................................15
SECTION 107. CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST................................................16
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.........................................................16
SECTION 109. SUCCESSORS AND ASSIGNS...........................................................................16
SECTION 110. SEPARABILITY CLAUSE..............................................................................17
SECTION 111. BENEFITS OF INDENTURE............................................................................17
SECTION 112. GOVERNING LAW....................................................................................17
SECTION 113. LEGAL HOLIDAYS...................................................................................17
SECTION 114. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES,
STOCKHOLDERS OR INCORPORATES.................................................................17
ARTICLE TWO SECURITY FORMS......................................................................................18
SECTION 201. FORMS GENERALLY..................................................................................18
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION..................................................18
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM...............................................................19
SECTION 204. FORM OF LEGEND FOR BOOK-ENTRY SECURITIES.........................................................20
ARTICLE THREE THE SECURITIES....................................................................................20
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.............................................................20
SECTION 302. DENOMINATIONS....................................................................................23
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING...................................................23
SECTION 304. BOOK-ENTRY SECURITIES............................................................................25
SECTION 305. TEMPORARY SECURITIES.............................................................................27
SECTION 306. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE..............................................29
SECTION 307. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.................................................32
SECTION 308. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED; OPTIONAL INTEREST RESET..........................33
SECTION 309. INTENTIONALLY LEFT BLANK.........................................................................35
SECTION 310. PERSONS DEEMED OWNERS............................................................................35
SECTION 311. CANCELLATION.....................................................................................35
SECTION 312. COMPUTATION OF INTEREST..........................................................................36
SECTION 313. CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF SECURITIES.........................................36
SECTION 314. APPOINTMENT AND RESIGNATION OF SUCCESSOR EXCHANGE RATE AGENT.....................................38
SECTION 315. CUSIP NUMBERS....................................................................................39
ARTICLE FOUR SATISFACTION AND DISCHARGE.........................................................................39
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE..........................................................39
SECTION 402. APPLICATION OF TRUST MONEY.......................................................................40
ARTICLE FIVE REMEDIES...........................................................................................41
SECTION 501. EVENTS OF DEFAULT................................................................................41
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT...............................................42
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE..................................43
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.................................................................44
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES......................................44
SECTION 506. APPLICATION OF MONEY COLLECTED...................................................................45
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
SECTION 507. LIMITATION ON SUITS..............................................................................45
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST........................46
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES...............................................................46
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE...................................................................46
SECTION 511. DELAY OR OMISSION NOT WAIVER.....................................................................46
SECTION 512. CONTROL BY HOLDERS...............................................................................47
SECTION 513. WAIVER OF PAST DEFAULTS..........................................................................47
SECTION 514. UNDERTAKING FOR COSTS............................................................................47
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.................................................................48
ARTICLE SIX THE TRUSTEE.........................................................................................48
SECTION 601. NOTICE OF DEFAULTS...............................................................................48
SECTION 602. CERTAIN RIGHTS OF TRUSTEE........................................................................48
SECTION 603. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES...................................49
SECTION 604. MAY HOLD SECURITIES..............................................................................50
SECTION 605. MONEY HELD IN TRUST..............................................................................50
SECTION 606. COMPENSATION AND REIMBURSEMENT...................................................................50
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING INTERESTS...................................51
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR................................................51
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR...........................................................53
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS......................................54
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT..............................................................54
SECTION 612. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY................................................56
ARTICLE SEVEN HOLDERS' LIST AND REPORTS BY TRUSTEE AND COMPANY..................................................56
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.....................................................56
SECTION 702. REPORTS BY TRUSTEE...............................................................................56
SECTION 703. REPORTS BY COMPANY...............................................................................56
ARTICLE EIGHT MERGER, CONSOLIDATION OR SALE OF ASSETS...........................................................57
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.............................................57
SECTION 802. SUCCESSOR SUBSTITUTED............................................................................58
ARTICLE NINE SUPPLEMENTAL INDENTURES............................................................................58
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS...............................................58
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS..................................................59
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.............................................................60
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES................................................................61
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT..............................................................61
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES...............................................61
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES................................................................61
ARTICLE TEN COVENANTS...........................................................................................61
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.............................................61
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.................................................................62
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST...............................................63
SECTION 1004. CORPORATE EXISTENCE.............................................................................64
SECTION 1005. PAYMENT OF TAXES AND OTHER CLAIMS...............................................................65
SECTION 1006. OTHER COVENANTS.................................................................................65
SECTION 1007. STATEMENT AS TO COMPLIANCE......................................................................65
ARTICLE ELEVEN REDEMPTION OF SECURITIES.........................................................................65
SECTION 1101. APPLICABILITY OF ARTICLE........................................................................65
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE...........................................................65
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED...............................................66
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
SECTION 1104. NOTICE OF REDEMPTION............................................................................66
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.....................................................................67
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE...........................................................67
SECTION 1107. SECURITIES REDEEMED IN PART.....................................................................68
ARTICLE TWELVE SINKING FUNDS....................................................................................69
SECTION 1201. APPLICABILITY OF ARTICLE........................................................................69
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES...........................................69
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.......................................................69
ARTICLE THIRTEEN PURCHASE AT OPTION OF HOLDERS...................................................................71
SECTION 1301. APPLICABILITY OF ARTICLE........................................................................71
SECTION 1302. PURCHASE OF SECURITIES..........................................................................71
SECTION 1303. EXERCISE OF OPTION..............................................................................71
SECTION 1304. WHEN SECURITIES PRESENTED FOR PURCHASE BECOME DUE AND PAYABLE...................................72
SECTION 1305. SECURITIES PURCHASED IN PART....................................................................73
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE.............................................................73
SECTION 1401. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE....................................73
SECTION 1402. DEFEASANCE AND DISCHARGE........................................................................73
SECTION 1403. COVENANT DEFEASANCE.............................................................................74
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.................................................74
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS...............................................................76
SECTION 1406. REINSTATEMENT...................................................................................77
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES...............................................................77
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.......................................................77
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS..............................................................77
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS............................................................78
SECTION 1504. QUORUM; ACTION..................................................................................78
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.............................79
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.................................................80
</TABLE>
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE
ACT OF 1939 AND INDENTURE
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
- ----------- -----------------
<S> <C>
Section 310(a) (1)..........................................................................................607
(a) (2)..........................................................................................607
(b)......................................................................................608(d), 609
Section 311(a)..............................................................................................612
(b)..............................................................................................612
Section 312(c)............................................................................................. 701
Section 313.................................................................................................702
Section 314(a)..............................................................................................703
(a) (4).........................................................................................1007
(c) (1)..........................................................................................102
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C>
(c) (2)..........................................................................................102
(e)..............................................................................................102
Section 315(b)..............................................................................................601
Section 316(a) (last sentence)..............................................................................101
(a) (1) (A).................................................................................502, 512
(a) (1) (B)......................................................................................513
(b)..............................................................................................508
(c)...........................................................................................104(e)
Section 317(a) (1)..........................................................................................503
(1) (2)..........................................................................................504
(b).............................................................................................1003
Section 318(a)..............................................................................................107
</TABLE>
iv
<PAGE> 6
INDENTURE, dated as of ___________________________, between SCI
SYSTEMS, INC., a corporation duly organized and existing under the laws of the
State of Delaware (the "Company"), having its principal office at 2101 West
Clinton Avenue, Huntsville, Alabama 35805 and _________________,
a__________________, as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior debt
securities (herein called the "Securities"), to be issued in one or more series
as in this Indenture provided.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and words in the singular include words in the plural as
well as the singular and words in the plural include the singular as well as the
plural;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and "self-liquidating
paper", as used in TIA Section 311, shall have the meanings assigned to them in
the rules of the Commission adopted under the Trust Indenture Act;
<PAGE> 7
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and except as otherwise herein expressly provided; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Three, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Authenticating Agent" means any Person appointed by the Trustee to act
on behalf of the Trustee pursuant to Section 611 to authenticate Securities.
"Authorized Newspaper" means a newspaper, in the English language or in
an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in each place in connection with which the term is
used or in the financial community of each 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 Law" means Title 11, United States Bankruptcy Code of 1978,
as amended, or any similar United States federal or state or foreign law
relating to bankruptcy, insolvency, receivership, winding-up, liquidation,
reorganization or relief of debtors or any amendment to, succession to or change
in any such law.
"Bearer Security" means any Security except a Registered Security.
"Board of Directors" means, with respect to any Person, either the
board of directors of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the secretary or an assistant secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Book-Entry Security" has the meaning specified in Section 304.
"Business Day" means, each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York
are authorized or obligated by law, regulation or executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, partnership interests, participation rights in or other equivalents
(however designated) of such
2
<PAGE> 8
Person's equity (however designated) whether now outstanding or issued after the
date of this Indenture.
"Capitalized Lease Obligation" means, with respect to any Person, an
obligation incurred or assumed under or in connection with any capital lease of
real or personal property that, in accordance with GAAP, has been recorded as a
capitalized lease on the balance sheet of such Person.
"Cedel" means Cedel Bank, S.A., or its successor.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act or, if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Depositary" has the meaning specified in Section 305.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company (i) by its chairman, a vice-chairman, its
president or any vice president and (ii) by its treasurer, an assistant
treasurer, its secretary or an assistant secretary and delivered to the Trustee;
provided, however, that such written request or order may be signed by any two
of the officers or directors listed in clause (i) above in lieu of being signed
by one of such officers or directors listed in such clause (i) and one of the
officers listed in clause (ii) above.
"Consolidated Subsidiaries" means, at any date, any Subsidiary or other
entity, the accounts of which would be consolidated with those of the Company in
its consolidated financial statements if such statements were prepared as of
such date.
"Conversion Date" has the meaning specified in Section 313(d).
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such Currency and by
a central bank or other public institution of or within the international
banking community for the settlement of transactions other than as a result of
the European Economic and Monetary Union and the adoption or phase in of the
Euro pursuant thereto, or (ii) any currency unit (or composite currency)
including the Euro for the purposes for which it was established.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office on the date of execution of this Indenture is located
at ______________, New York, New York ____.
3
<PAGE> 9
"Corporation" includes corporations, associations, partnerships,
limited liability companies, companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Covenant defeasance" has the meaning specified in Section 1403 hereof.
"Currency" means any currency or currencies, composite currency or
currency unit or currency units, including, without limitation, the Euro, issued
by the government of one or more countries or by any recognized confederation or
association of such governments.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar officer under any Bankruptcy Law.
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 308 hereof.
"defeasance" has the meaning specified in Section 1402 hereof.
"Depository" has the meaning specified in Section 304.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 313(g).
"Dollar Equivalent of the Foreign Currency" has the meaning specified
in Section 313(f).
"Election Date" has the meaning specified in Section 313(g).
"Euro" means the single currency for those member states of the
European Union that satisfy certain criteria set forth in the Treaty of Rome, as
amended by the Treaty on European Union.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Date" has the meaning specified in Section 305.
4
<PAGE> 10
"Exchange Rate Agent" means, with respect to Securities of or within
any series, unless otherwise specified with respect to any Securities pursuant
to Section 301, a New York Clearing House bank, designated pursuant to Section
301 or Section 313.
"Exchange Rate Officers' Certificate" means a tested telex or a
certificate setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with Section
302 in the relevant Currency), payable with respect to a Security of any series
on the basis of such Market Exchange Rate, sent (in the case of a telex) or
signed (in the case of a certificate) by the Chairman, Chief Executive Officer,
a Vice Chairman, the President, a Vice President or the Treasurer of the
Company.
"Foreign Currency" means any Currency other than Currency of the United
States.
"Generally Accepted Accounting Principles" or "GAAP" means Generally
Accepted Accounting Principles in the United States, as in effect from time to
time, applied on a basis consistent (except for changes concurred in by the
Company's independent public accountants) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries.
"Global Securities" means one or more Securities evidencing all or part
of the Securities to be issued as Book-Entry Securities, issued to the
Depository in accordance with Section 301 and bearing the legend prescribed in
Section 204.
"Government Obligations" means, unless otherwise specified with respect
to any series of Securities pursuant to Section 301, securities which are (1)
direct obligations of the United States of America or of the other government or
governments in the confederation which issued the Foreign Currency in which such
series of Securities shall be payable, in each case where the payment or
payments thereunder are supported by the full faith and credit of such
government or governments or (2) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America or such other government or governments, in each case where the timely
payment or payments thereunder are unconditionally guaranteed as a full faith
and credit obligation by the United States of America or such other government
or governments. In either case, such obligations may not be callable or
redeemable at the option of the issuer or issuers thereof. Such obligations may
also include a depository receipt issued by a bank or trust company as custodian
with respect to any such Government Obligation or a specific payment of interest
on or principal of or other amount with respect to any such Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or principal of or
other amount with respect to the Government Obligation evidenced by such
depository receipt.
5
<PAGE> 11
"guarantee" means, as applied to any obligation, (a) a guarantee (other
than by endorsement of negotiable instruments for collection in the ordinary
course of business), direct or indirect, in any manner, of any part or all of
such obligation and (b) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limitation, the payment of
amounts drawn down under letters of credit.
"Hedging Obligations" means the obligations of any Person under (a)
interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements and (b) other agreements or arrangements designed to protect
such Person against fluctuations in interest rates or the value of foreign
currencies.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case of
a Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"incorporated provision" has the meaning specified in Section 107.
"Indebtedness", with respect to any Person means (without
duplication): (a) any liability of such Person (1) for borrowed money, or under
any reimbursement obligation relating to a letter of credit, or (2) evidenced by
a bond, note, debenture or similar instrument, or (3) for payment obligations
arising under any conditional sale or other title retention arrangement
(including a purchase money obligation) given in connection with the acquisition
of any businesses, properties or assets of any kind, or (4) under Capitalized
Lease Obligations, or (5) under Hedging Obligations; (b) any liability of others
of a type described in the preceding clause (a) to the extent that such Person
has guaranteed or is otherwise legally obligated in respect thereof; and (c) any
amendment, supplement, modification, deferral, renewal, extension or refunding
of any liability of the types referred to in clauses (a) and (b) above.
"Indebtedness" shall not be construed to include (x) trade payables or credit on
open account to trade creditors incurred in the ordinary course of business or
(y) obligations or liabilities incurred in connection with the sale, transfer or
other disposition of property in connection with the securitization or other
asset-based financing thereof; provided however that any such sale, transfer or
other disposition shall be for valid consideration and shall not be to prefer
directly or indirectly any holder of any other obligation or Indebtedness of
such Person as to any such other obligation or Indebtedness that was already
outstanding and did not previously benefit from a Lien.
"Indenture" means this instrument as originally executed (including all
exhibits and schedules hereto) and as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof, and shall include the terms of particular
series of Securities established as contemplated by Section 301; provided,
however, that, if at any time more than one Person is acting as Trustee under
this instrument, "Indenture" shall mean, with respect to any one or more series
of Securities for which such Person is Trustee, 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
for which such Person is Trustee established as contemplated by Section 301,
exclusive, however, of any provisions or terms which relate solely to other
series of
6
<PAGE> 12
Securities for which such Person is not Trustee, regardless of when such terms
or provisions were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and delivered after
such Person had become such Trustee but to which such Person, as such Trustee,
was not a party.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity at the rate prescribed in such Original Issue Discount
Security.
"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of an installment of interest on such
Securities.
"Lease" means any capital lease, operating lease, equipment lease, real
property lease or other lease.
"Lien" means, with respect to any asset, any pledge, mortgage, charge,
encumbrance or security interest in respect of such asset; provided that any
transaction (including, without limitation, any sale of accounts receivable)
which is treated as a sale of assets under GAAP shall be so treated and any
asset which is so sold shall not be deemed subject to a Lien. A contractual
grant of a right of set-off does not create a Lien in the absence of an
agreement to maintain a balance against which such right may be exercised.
"mandatory sinking fund payment" shall have the meaning specified in
Section 1201.
"Market Exchange Rate" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, (i) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 301 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon (New York City time) buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot rate at
noon local time in the relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion is
being made from major banks located in either New York City, London or any other
principal market for Dollars or such purchased Foreign Currency, in each case
determined by the Exchange Rate Agent. Unless otherwise specified with respect
to any Securities pursuant to Section 301, in the event of the unavailability of
any of the exchange rates provided for in the foregoing clauses (i), (ii) and
(iii), the Exchange Rate Agent shall use, in its sole discretion and
7
<PAGE> 13
without liability on its part, such quotation of the Federal Reserve Bank of New
York as of the most recent available date, or quotations from one or more major
banks in New York City, London or another principal market for the Currency in
question, or such other quotations as the Exchange Rate Agent shall deem
appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is
more than one market for dealing in any Currency by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such Currency
shall be that upon which a non-resident issuer of securities designated in such
Currency would purchase such Currency in order to make payments in respect of
such securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided whether at the Stated Maturity, by declaration of acceleration,
notice of redemption, notice of option to elect repayment or otherwise.
"Notice of Default" shall have the meaning specified in Section 601.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two officers of the Company, one of whom must be principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company that meets the requirements set forth in
Section 102.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee. Each such
opinion shall include the statements provided for in TIA Section 314(e) to the
extent applicable.
"Option to Elect Repayment" shall have the meaning specified in Section
1303.
"optional sinking fund payment" shall have the meaning specified in
Section 1201.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding" when used with respect to Securities means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment,
purchase, redemption or repayment at the option of the Holder 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 and any coupons appertaining thereto; 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;
8
<PAGE> 14
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen; and
(iv) Securities paid pursuant to Section 307 or Securities
in exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that, in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
direction, consent or waiver hereunder or are present at a meeting of Holders
for quorum purposes, and for the purpose of making the calculations required by
TIA Section 313, (i) the principal amount of an Original Issue Discount Security
that may be counted in making such determination or calculation and that shall
be deemed to be Outstanding for such purpose shall be equal to the amount of
principal thereof that would be (or shall have been declared to be) due and
payable, at the time of such determination, upon a declaration of acceleration
of the maturity thereof pursuant to Section 502, (ii) the principal amount of
any Indexed Security that may be counted in making such determination or
calculation and that shall be deemed outstanding for such purpose shall be equal
to the principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Security pursuant to Section 301,
and (iii) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such calculation or in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee actually knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor.
"Paying Agent" means any Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal of (or premium, if any) or
interest, if any, on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof or any other entity.
"Place of Payment" means, when used with respect to the Securities of
or within any series, the place or places where the principal of (and premium,
if any) and interest, if any, on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
9
<PAGE> 15
"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 307 in exchange for a mutilated
Security or in lieu of a destroyed, lost or stolen Security or a Security to
which a mutilated, destroyed, lost or stolen coupon appertains shall be deemed
to evidence the same debt as the mutilated, destroyed, lost or stolen Security
or the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Purchase Date" means, when used with respect to any Security to be
purchased at the option of the Holder, the date fixed for such purchase pursuant
to this Indenture.
"Purchase Price" means, when used with respect to any Security to be
purchased at the option of the Holder, the price at which it is to be purchased
pursuant to this Indenture.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security registered in the Security
Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means any
vice-president, any assistant secretary, any assistant treasurer, any trust
officer or assistant trust officer, the controller and any assistant controller
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above-designated officers or assigned by the
Trustee to administer corporate trust matters at its Corporate Trust Office and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Subsidiary" means, at any time, each and every Subsidiary
which is a "significant subsidiary" as defined in Rule 1-02(w) of Regulation S-X
under the Securities Act and the Exchange Act.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities 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
the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this Indenture and shall more particularly mean
Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
10
<PAGE> 16
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 306.
"Special Record Date" means a date fixed by the Trustee for the payment
of any Defaulted Interest pursuant to Section 308.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 309.
"Subsidiary" means any Person a majority of the equity ownership or
Voting Stock of which is at the time owned, directly or indirectly, by the
Company and/or one or more other Subsidiaries of the Company.
"Surviving Entity" shall have the meaning set forth in Section 801
hereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended, and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture 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;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, 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 person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States, an estate the
income of which is subject to United States Federal income taxation regardless
of its source, or any trust whose administration is subject to the primary
supervision of a United States court and which has one or more United States
fiduciaries who have the authority to control all substantial decisions of the
trust.
"Unrestricted Subsidiary" means any Subsidiary which is not a
Restricted Subsidiary.
"Valuation Date" has the meaning specified in Section 313(c).
11
<PAGE> 17
"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".
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes has, or might have, voting power by reason of the
happening of any contingency).
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent redetermination
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) 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 covenant
or condition provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such covenant or condition has been complied with.
12
<PAGE> 18
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of the Outstanding Securities of all series or one or more series, as
the case may be, may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable 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 of such series may, alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the provisions
of Article Fifteen, 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 or so voting at any such meeting.
Proof of execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to TIA Section 315) 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 1506.
13
<PAGE> 19
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) 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, banker 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 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. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner that the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of such Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), any such record date shall be the record
date specified in or pursuant to such Board Resolution, which shall be a date
not more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than the date such solicitation is completed.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of Securities then Outstanding have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Securities then Outstanding shall be computed as of such record date, provided
that no such request, demand, authorization, direction, notice, consent, waiver
or other Act by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holder of any Security shall bind every
future Holder of the same Security or the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof,
in respect of anything done, suffered or omitted to be done by the Trustee, any
Paying Agent or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
14
<PAGE> 20
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or the Company shall be sufficient for
every purpose hereunder if made, given, furnished or delivered, in writing, to
or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Administration; or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or delivered, in writing, or mailed,
first-class postage prepaid, or delivered by recognized overnight courier, to
the Company addressed to it at the address of its principal office specified in
the first paragraph of this Indenture, or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such event,
at his address as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders 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 shall affect the sufficiency of such notice
with respect to other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided. Any notice mailed to a
Holder in the aforesaid manner shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such
notice.
In case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impractical to mail
notice of any event to Holders of Registered Securities when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be sufficient giving of such notice for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given to Holders of Bearer Securities if published in an
Authorized Newspaper in The City of New York and in such other city or cities as
may be specified in such Securities on a Business Day at least twice, the first
such publication to be not earlier than the earliest date, and not later than
the latest date, prescribed for the giving of such notice. Any such notice shall
be deemed to have been given on the date of the first such publication.
15
<PAGE> 21
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 given
with the approval of the Trustee 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 such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
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.
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 107. CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST
INDENTURE ACT.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by TIA Sections 310 to 318,
inclusive, or conflicts with any provision (an "incorporated provision")
required by or deemed to be included in this Indenture by operation of such TIA
Sections, such imposed duties or incorporated provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or excluded, as the case may
be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
16
<PAGE> 22
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in any Security or coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar, any holders of
Senior Indebtedness and their successors hereunder and the Holders of Securities
or coupons, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES AND COUPONS SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THIS INDENTURE
SHALL BE SUBJECT TO, AND GOVERNED BY, THE PROVISIONS OF THE TRUST INDENTURE ACT
OF 1939, AS AMENDED, THAT ARE REQUIRED TO BE PART OF AND TO GOVERN INDENTURES
QUALIFIED THEREUNDER.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, sinking
fund payment date or Stated Maturity or Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of any Security or coupon other than a provision in the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section), payment of principal (or premium, if any) or
interest, if any, need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or Redemption
Date or sinking fund payment date, or at the Stated Maturity or Maturity;
provided that no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be.
SECTION 114. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES,
STOCKHOLDERS OR INCORPORATES.
No director, officer, employee, incorporator or stockholders, as such,
of the Company shall have any liability for any obligations of the Company under
the Securities or this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creations. Each Holder by accepting any of
the Securities waives and releases all such liability. Such waiver and release
are part of the consideration for the issuance of the Securities of any series.
17
<PAGE> 23
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in substantially
the forms as shall be established by or pursuant to a Board Resolution or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
or coupons, as evidenced by their execution of the Securities or coupons. If the
forms of Securities or coupons of any series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities or coupons. Any portion of the text of any Security may be set forth
on the reverse thereof, with an appropriate reference thereto on the face of the
Security.
Unless otherwise specified as contemplated by Section 301, Securities
in bearer form shall have interest coupons attached.
The Trustee's certificate of authentication on all Securities shall be
in substantially the form set forth in this Article.
The definitive Securities and coupons shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing such Securities, as
evidenced by their execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 612, the Trustee's certificate of authentication
shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated:
--------------------------------
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
____________, as Trustee
By:
----------------------------------
Authorized Signatory
18
<PAGE> 24
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM.
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, any such 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 of such series from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities of such series represented
thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and 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 303 or Section 305. Subject
to the provisions of Section 303 and, if applicable, Section 305, the Trustee
shall deliver and redeliver any Security in permanent global form in the manner
and upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or Section
305 has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a Security in global
form shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 308, unless otherwise
specified as contemplated by Section 301, payment of principal of (and premium,
if any) and interest, if any, on any Security in permanent global form shall be
made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 310 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent Global Security (i) in the
case of a permanent Global Security in registered form, the Holder of such
permanent Global Security in registered form, or (ii) in the case of a permanent
Global Security in bearer form, Euroclear or Cedel.
19
<PAGE> 25
SECTION 204. FORM OF LEGEND FOR BOOK-ENTRY SECURITIES.
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITORY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK 10041) TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND SUCH
CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN THE NAME OF
CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, 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, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (17) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series and set forth in such Securities of the series
when issued from time to time):
(1) the title and ranking of the Securities of the series (which
shall distinguish the Securities of the series from all other series of
Securities):
20
<PAGE> 26
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 305, 306, 307, 906, 1107 or 1305):
(3) the Person to whom any interest on the Securities of any
series is payable if other than the Person in whose name the Securities of such
series are registered on the Regular Record Date;
(4) the date or dates, or the method by which such date or dates
will be determined or extended, on which the principal of the Securities of the
series is payable;
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, or the
method by which such date or dates shall be determined, the Interest Payment
Dates on which such interest shall be payable and the Regular Record Date, if
any, for the interest payable on any Registered Security on any Interest Payment
Date, or the method by which such date or dates shall be determined, and the
basis upon which interest shall be calculated if other than on the basis of a
360-day year of twelve 30-day months;
(6) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of (and premium,
if any) and interest, if any, on Securities of the series shall be payable,
where any Registered Securities of the series may be surrendered for
registration of transfer, where Securities of the series may be surrendered for
exchange, where Securities of the series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable and, if different
than the location specified in Section 106, the place or places where notices or
demands to or upon the Company in respect of the Securities of the series and
this Indenture may be served;
(7) the period or periods within which, the events upon the
occurrence of which, the price or prices at which, and other terms and
conditions upon which Securities of the series may be redeemed or purchased, in
whole or in part, at the option of the Company, if the Company is to have that
option;
(8) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof, and the period or periods within
which, the price or prices at which, and other terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any Securities of
the series shall be issuable;
(10) whether the amount of payments of principal of (or premium, if
any) or interest, if any, on the Securities of the series may be determined with
reference to an index, formula or other method (which index, formula or method
may be based, without limitation, on one or more
21
<PAGE> 27
Currencies, commodities, equity indices or other indices), and the manner in
which such amounts shall be determined;
(11) whether the principal of (or premium, if any) or interest, if
any, on the Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a Currency other than Dollars, the period or
periods within which (including the Election Date), and the terms and conditions
upon which, such election may be made, and the time and manner of determining
the exchange rate between the Currency in which such Securities are denominated
or stated to be payable and the Currency in which such Securities are to be so
payable, in each case in accordance with, in addition to or in lieu of any of
the provisions of Section 313;
(12) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
the method by which such portion shall be determined;
(13) if the principal amount of the Securities of the series
payable at the Maturity thereof is not determinable as of any date prior to such
Maturity, the amount which shall be deemed to be the Outstanding principal
amount of the Securities of such series;
(14) any change in the applicability of Sections 1402 and/or 1403
to the Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen that shall
be applicable to the Securities of the series;
(15) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities,
whether any Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be issuable in
permanent global form with or without coupons and, if so, whether beneficial
owners of interests in any such permanent Global Security may exchange such
interests for Securities of such series and of like tenor of any authorized form
and denomination and the circumstances under which any such exchanges may occur,
if other than in the manner provided in Section 306, whether Registered
Securities of the series may be exchanged for Bearer Securities of the series
(if permitted by applicable laws and regulations), whether Bearer Securities of
the series may be exchanged for Registered Securities of such series, and the
circumstances under which and the place or places where any such exchanges may
be made and if Securities of the series are to be issuable in global form, the
identity of any initial depository therefor;
(16) any change in the applicability of the Events of Default with
respect to Securities of the series, whether or not such Events of Default are
consistent with the Events of Default set forth herein;
(17) any deletions from, modifications of or additions to the
covenants of the Company with respect to Securities of the series, whether or
not such covenants are consistent with the covenants set forth herein;
(18) if the Securities of the series are to be secured;
22
<PAGE> 28
(19) the specific terms of the depository arrangement with respect
to any portion of a series of Securities to be represented by a Global Security
pursuant to Section 304; and
(20) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series (which terms
shall not be inconsistent with the requirements of the Trust Indenture Act or
the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 303) and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto. Not all Securities of any one series need be issued at the same time,
and, unless otherwise provided, a series may be reopened for issuances of
additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 301. With respect to Securities
of any series denominated in Dollars, in the absence of any such provisions, the
Securities of such series, other than Securities issued in global form (which
may be of any denomination), shall be issuable in denominations of $1,000 and
any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities and any coupons appertaining thereto shall be executed
on behalf of the Company by any one of the following: its Chairman, Chief
Executive Officer, its President or one of its Vice Presidents, and attested by
one of its Vice Presidents or its Secretary or one of its Assistant Secretaries.
The signature of any of these officers on the Securities or coupons may be
manual or facsimile.
Securities or 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 or coupons.
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 coupon appertaining thereto, 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 in accordance with such Company
Order shall authenticate and make available for delivery such Securities;
provided,
23
<PAGE> 29
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, unless otherwise specified with respect to any series of
Securities pursuant to Section 301, a Bearer Security may be delivered in
connection with its original issuance only if the Person entitled to receive
such Bearer Security shall have furnished a certificate in the form set forth in
EXHIBIT A-1 to this Indenture, dated no earlier than 15 days prior to the
earlier of the date on which such Bearer Security is delivered and the date on
which any temporary Security first becomes exchangeable for such Bearer Security
in accordance with the terms of such temporary Security and this Indenture. If
any Security shall be represented by a permanent global Bearer Security, then,
for purposes of this Section and Section 305, the notation of a beneficial
owner's interest therein upon original issuance of such Security or upon
exchange of a portion of a temporary Global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent Global Security. Except as permitted by Section 307,
the Trustee shall not authenticate and make available for delivery any Bearer
Security unless all appurtenant coupons for interest then matured have been
detached and canceled. If not all the Securities of any series are to be issued
at one time and if the Board Resolution or supplemental indenture establishing
such series shall so permit, such Company Order may set forth procedures
acceptable to the Trustee for the issuance of such Securities and determining
terms of particular Securities of such series such as interest rate, stated
maturity, date of issuance and date from which interest shall accrue.
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 TIA sections 315(a)
through 315(d)) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(a) that the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture:
(b) that the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
(c) that such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and delivered by
the Company to the Trustee for authentication in accordance with this Indenture,
authenticated and made available for delivery by the Trustee in accordance with
this Indenture and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute the legal,
valid and binding obligations of the Company, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency, reorganization and
other similar laws of general applicability relating to or affecting the
enforcement of creditors' rights, to general equitable principles and to such
other qualifications as such counsel shall conclude do not materially affect the
rights of Holders of such Securities and any coupons;
(d) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities, any coupons and of the supplemental
indentures, if any, have been complied with and that authentication and delivery
of such Securities and any coupons and the
24
<PAGE> 30
execution and delivery of the supplemental indenture, if any, by the Trustee
will not violate the terms of the Indenture;
(e) that the Company has the corporate power to issue such
Securities and any coupons, and has duly taken all necessary corporate action
with respect to such issuance; and
(f) that the issuance of such Securities and any coupons will not
contravene the articles of incorporation or by-laws of the Company or result in
any violation of any of the terms or provisions of any law or regulation or of
any indenture, mortgage or other agreement known to such Counsel by which the
Company is bound.
Notwithstanding the provisions of Section 301 and of the preceding two
paragraphs, if not all the Securities of any series are to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to the preceding two paragraphs prior to or at the
time of issuance of each Security, but such documents shall be delivered prior
to or at the time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate and make available
for delivery any such Securities if the issue of such Securities pursuant to
this Indenture will affect the Trustee's own rights, duties or immunities under
the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 301.
No Security or coupon 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 duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as provided in
Section 311 together with a written statement (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. BOOK-ENTRY SECURITIES.
(a) The Securities of a series may be issuable in whole or in part
in the form of one or more Global Securities ("Book-Entry Securities") deposited
with, or on behalf of, a Depository (the "Depository"). In the case of
Book-Entry Securities, one or more Global Securities will be issued in a
denomination or aggregate
25
<PAGE> 31
denomination equal to the portion of the aggregate principal amount of
Outstanding Securities of the series to be represented by such Global Security
or Global Securities. Unless otherwise provided as contemplated by Section 301,
the additional provisions set forth in this Section 304 shall apply to
Book-Entry Securities.
(b) Book-Entry Securities will be deposited with, or on behalf of,
the Depository, and registered in the name of the Depository's nominee, for
credit to the respective accounts of institutions that have accounts with the
Depository or its nominee ("Participants"); provided that Book-Entry Securities
purchased by persons outside the United States may be credited to or through
accounts maintained at the Depository by or on behalf of Euroclear or Cedel. The
accounts to be credited will be designated by the underwriters or agents of such
Securities or, if such Securities are offered and sold directly by the Company,
by the Company. Ownership of beneficial interests in Book-Entry Securities will
be limited to Persons that may hold interests through Participants and will be
shown on records maintained by the Depository or its nominee for such Book-Entry
Security. Participants shall have no rights under this Indenture or any
indenture supplemental hereto with respect to any Book-Entry Security held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Book-Entry Security, and the Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of the
Book-Entry Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing in this Indenture or any such indenture supplemental shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depository or impair, as between the Depository and its Participants, the
operation of customary practices governing the exercise of the rights of a
Holder of any Security.
(c) Transfers of Book-Entry Securities shall be limited to
transfers in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in Book-Entry Securities may
be transferred or exchanged for Bearer Securities only if (i) the Depository
advises the Trustee in writing that it is no longer willing or able to discharge
properly its responsibilities with respect to such Book-Entry Security and it is
unable to locate a qualified successor, (ii) the Company, at its option, elects
to terminate the book-entry system by executing and delivering to the Trustee
and the Depository a notice to such effect, or (iii) there shall have occurred
and be continuing a Default or Event of Default with respect to the Securities
represented by such Book-Entry Security.
(d) In connection with any transfer or exchange of a portion of
the beneficial interest in any Book-Entry Security to beneficial owners pursuant
to paragraph (c) above, the Security Registrar shall (if one or more Bearer
Securities are to be issued) reflect on its books and records the date and a
decrease in the principal amount of the Book-Entry Security in an amount equal
to the principal amount of the beneficial interest in the Book-Entry Security to
be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Bearer Securities of like tenor and
principal amount of authorized denominations.
(e) In connection with the transfer of Book-Entry Securities as an
entirety to beneficial owners pursuant to paragraph (c) above, the Book-Entry
Securities shall be deemed to be surrendered to the Trustee for cancellation and
the Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depository in exchange
26
<PAGE> 32
for its beneficial interest in the Book-Entry Securities, an equal aggregate
principal amount of Bearer Securities of like tenor of authorized denominations.
(f) The Holder of any Book-Entry Security may grant proxies and
otherwise authorize any person, including Participants and Persons that may hold
interests through Participants, to take any action which a Holder is entitled to
take under the applicable Indenture or the Securities.
SECTION 305. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are typewritten, printed, lithographed,
engraved or otherwise produced by any combination of these methods, in any
authorized denomination, 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. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form that are not
issued as Book-Entry Securities as provided in Section 304 (which shall be
exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured coupons appertaining thereto), the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations; provided, however, that no Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a Bearer Security shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in Section 303. 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.
If temporary Securities of any series are issued in global form (other
than Securities issued as Book-Entry Securities as provided in Section 304), any
such temporary Global Security shall, unless otherwise provided therein, be
delivered to the London office of a depositary or common depositary (the "Common
Depositary"), for the benefit of Euroclear and Cedel, for credit to the
respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary Global
Security that is not issued as a
27
<PAGE> 33
Book-Entry Security as provided in Section 304 (the "Exchange Date"), the
Company shall deliver to the Trustee definitive Securities, in aggregate
principal amount equal to the principal amount of such temporary Global
Security, executed by the Company. On or after the Exchange Date such temporary
Global Security shall be surrendered by the Common Depositary to the Trustee, as
the Company's agent for such purpose, to be exchanged, in whole or from time to
time in part, for definitive Securities without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary Global
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 Security to be exchanged. The definitive Securities to be
delivered in exchange for any such temporary Global Security shall be in bearer
form, registered form, permanent global bearer form or permanent global
registered form, or any combination thereof, as specified as contemplated by
Section 301, and, if any combination thereof is so specified, as requested by
the beneficial owner thereof; provided, however, that, unless otherwise
specified in such temporary Global Security, upon such presentation by the
Common Depositary, such temporary Global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by Euroclear
as to the portion of such temporary Global Security held for its account then to
be exchanged and a certificate dated the Exchange Date or a subsequent date and
signed by Cedel as to the portion of such temporary Global Security held for its
account then to be exchanged, each in the form set forth in EXHIBIT A-2 to this
Indenture (or in such other form as may be established pursuant to Section 301);
and provided further that Bearer Securities shall be delivered in exchange for a
portion of a temporary Global Security only in compliance with the requirements
of Section 303.
Unless otherwise specified in such temporary Global Security that is
not issued as a Book-Entry Security as provided in Section 304, the interest of
a beneficial owner of Securities of a series in a temporary Global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euroclear or
Cedel, as the case may be, to request such exchange on his behalf and delivers
to Euroclear or Cedel, as the case may be, a certificate in the form set forth
in EXHIBIT A-1 to this Indenture (or in such other form as may be established
pursuant to Section 301), dated no earlier than 15 days prior to the Exchange
Date, copies of which certificate shall be available from the offices of
Euroclear and Cedel, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in such
temporary Global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary Global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euroclear or Cedel.
Bearer Securities in bearer form to be delivered in exchange for any portion of
a temporary Global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series, including temporary Global Securities (whether or not
issued as Book-Entry Securities as provided in Section 304), shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and delivered
hereunder, except that, unless otherwise specified as contemplated by Section
301, interest payable on a temporary Global Security (other than Securities
issued as Book-Entry Securities as
28
<PAGE> 34
provided in Section 304) on an Interest Payment Date for Securities of such
series occurring prior to the applicable Exchange Date shall be payable to
Euroclear and Cedel on such Interest Payment Date upon delivery by Euroclear and
Cedel to the Trustee of a certificate or certificates in the form set forth in
EXHIBIT A-2 to this Indenture (or in such other form as may be established
pursuant to Section 301), for credit without further interest thereon on or
after such Interest Payment Date to the respective accounts of the Persons who
are the beneficial owners of such temporary Global Security on such Interest
Payment Date and who have each delivered to Euroclear or Cedel, as the case may
be, a certificate dated no earlier than 15 days prior to the Interest Payment
Date occurring prior to such Exchange Date in the form set forth in EXHIBIT A-1
to this Indenture (or in such other form as may be established pursuant to
Section 301). Notwithstanding anything to the contrary herein contained, the
certifications made pursuant to this paragraph shall satisfy the certification
requirements of the preceding two paragraphs of this Section and of the third
paragraph of Section 303 of this Indenture and the interests of the Persons who
are the beneficial owners of the temporary Global Security with respect to which
such certification was made will be exchanged for definitive Securities of the
same series and of like tenor on the Exchange Date or the date of certification
if such date occurs after the Exchange Date, without further act or deed by such
beneficial owners. Except as otherwise provided in this paragraph, no payments
of principal (or premium, if any) or interest, if any, owing with respect to a
beneficial interest in a temporary Global Security will be made unless and until
such interest in such temporary Global Security shall have been exchanged for an
interest in a definitive Security. Any interest so received by Euroclear and
Cedel and not paid as herein provided shall be returned to the Trustee
immediately prior to the expiration of two years after such Interest Payment
Date in order to be repaid to the Company in accordance with Section 1003.
SECTION 306. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register for each series of Securities (the registers maintained in
such office of the Trustee and in any other office or agency designated pursuant
to Section 1002 being herein sometimes referred to as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Registered Securities and of
transfers of Registered Securities. The Trustee is hereby initially appointed
"Security Registrar" for the purpose of registering Registered Securities and
transfers of Registered Securities as herein provided.
Except as otherwise described in this Article Three, upon surrender for
registration of transfer of any Registered Security of any series at the office
or agency in a Place of Payment for that series, the Company shall execute, and
the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of the same
series, in each case, of any authorized denominations and of a like aggregate
principal amount.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Registered Securities to be exchanged at such
29
<PAGE> 35
office or agency. Whenever any Registered Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, the Registered Securities which the Holder making the
exchange is entitled to receive. Unless otherwise specified with respect to any
series of Securities as contemplated by Section 301 or Section 304, Bearer
Securities may not be issued in exchange for Registered Securities.
If (but only if) expressly permitted in or pursuant to the applicable
Board Resolution and (subject to Section 303) set forth in the applicable
Officers' Certificate, or in any indenture supplemental hereto, delivered as
contemplated by Section 301, at the option of the Holder, Bearer Securities of
any series may be exchanged for Registered Securities of the same series of any
authorized denomination 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, any such
permitted 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 is 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
such payment; provided, however, that, except as otherwise provided in Section
1002, interest represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in a permitted 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 proposed 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, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of 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.
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, and the Trustee
shall cancel the Bearer Securities so transferred. In the case of an exchange of
Bearer Securities for an interest in a Book-Entry Security, the Security
Registrar shall reflect on the Register the date and an increase in the
principal amount of the Bearer Securities to be transferred, and the Trustee
shall cancel the Bearer Securities so transferred.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent Global Security (other than
Securities issued as Book-Entry Securities as
30
<PAGE> 36
provided in Section 304) shall be exchangeable only as provided in this
paragraph. If any beneficial owner of an interest in a permanent Global Security
is entitled to exchange such interest for Securities of such series and of like
tenor and principal amount of another authorized form and denomination, as
specified as contemplated by Section 301 and provided that any applicable notice
provided in the permanent Global Security shall have been given, then without
unnecessary delay but in any event not later than the earliest date on which
such interest may be so exchanged, the Company shall deliver to the Trustee
definitive Securities in aggregate principal amount equal to the principal
amount of such beneficial owner's interest in such permanent Global Security,
executed by the Company. On or after the earliest date on which such interests
may be so exchanged, such permanent Global Security shall be surrendered by the
Common Depositary or such other depositary as shall be specified in the Company
Order with respect thereto to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for definitive
Securities without charge, and the Trustee shall authenticate and deliver, in
exchange for each portion of such permanent Global 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 permanent Global Security
to be exchanged which, unless the Securities of the series are not issuable both
as Bearer Securities and as Registered Securities, as specified as contemplated
by Section 301, shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the beneficial
owner thereof; provided, however, that no such exchanges may occur during a
period beginning at the opening of business 15 days before any selection of
Securities to be redeemed and ending on the relevant Redemption Date if the
Security for which exchange is requested may be among those selected for
redemption; and provided further that no Bearer Security delivered in exchange
for a portion of a permanent Global Security shall be mailed or otherwise
delivered to any location in the United States. If a Registered Security is
issued in exchange for any portion of a permanent Global Security after the
close of business at the office or agency where such exchange occurs on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such Registered Security, but
will be payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom interest in respect of such portion
of such permanent Global Security is payable in accordance with the provisions
of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the 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.
31
<PAGE> 37
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to pay all documentary, stamp, similar issue or transfer taxes or other
governmental charges that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
305, 906, 1107 or 1305 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the selection for redemption of Securities
of that series under Section 1103 or 1203 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 and (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 of or
exchange any Registered Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part, or (iii)
to exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor; provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 307. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee together with, in proper cases,
such security or indemnity as may be required by the Company or the Trustee to
save each of them and any agent of either of them harmless, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to the surrendered Security, or, in case
any such mutilated Security or coupon has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new Security,
with coupons corresponding to the coupons, if any, appertaining to the
surrendered Security, pay such Security or coupon.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon Company
Order the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security for which a destroyed,
lost or stolen coupon appertains (with all appurtenant coupons not destroyed,
lost or stolen), a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to such destroyed,
32
<PAGE> 38
lost or stolen Security or to the Security to which such destroyed, lost or
stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such mutilated, destroyed, lost or stolen Security or to the
Security to which such mutilated, destroyed, lost or stolen coupon appertains,
pay such Security or coupon; provided, however, that payment of principal of
(and premium, if any) and interest, if any, on Bearer Securities shall, except
as otherwise provided in Section 1002, be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 301, any interest on Bearer Securities shall be payable
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 pay all documentary, stamp or
similar issue or transfer taxes or other governmental charges 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 lieu of any mutilated, destroyed, lost or stolen
Security or in exchange for a Security to which a mutilated, destroyed, lost or
stolen coupon appertains, 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 that series and their coupons, if any, duly issued
hereunder.
The provisions of this Section 307 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 308. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED; OPTIONAL
INTEREST RESET.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest, if any, on any Registered Security which
is payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name such Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose pursuant to Section 1002: provided, however, that each
installment of interest, if any, on any Registered Security may at the Company's
option be paid by (i) mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to Section 310, to the
address of such Person as it appears on the Security Register or (ii) transfer
to an account located in the United States maintained by the payee.
33
<PAGE> 39
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest, if any, may be made, in
the case of a Bearer Security, by transfer to an account located outside the
United States maintained by the payee.
Unless otherwise provided as contemplated by Section 301, every
permanent Global Security (other than Book-Entry Securities issued as provided
in Section 304) will provide that interest, if any, payable on any Interest
Payment Date will be paid to each of Euroclear and Cedel with respect to that
portion of such permanent Global Security held for its account by the Common
Depositary, for the purpose of permitting each of Euroclear and Cedel to credit
the interest, if any, received by it in respect of such permanent Global
Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
shall forthwith cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such defaulted interest and, if
applicable, interest on such defaulted interest (to the extent lawful) at the
rate specified in the Securities of such series (such defaulted interest and, if
applicable, interest thereon herein collectively called "Defaulted Interest")
may be paid by the Company, at its election in each case, as provided in
Subsection (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Registered Security of such series and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount of
money in the Currency in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 313(b), 313(d) and 313(e))
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
on or 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 Subsection provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given in the manner provided in Section 106, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so given,
such Defaulted Interest shall be paid to the Persons in whose name the
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following Subsection (2).
34
<PAGE> 40
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
SECTION 309. Intentionally left blank.
SECTION 310. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 306 and 308)
interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and none of the Company, the Trustee or
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. 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 coupons be overdue, and none of the Company, the
Trustee or any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depositary, as a Holder, with respect to
such Global Security or impair, as between such depositary and owners of
beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such Global Security.
SECTION 311. CANCELLATION.
All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or exchange or
for credit against any current or future sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities and coupons so delivered to the Trustee shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities
35
<PAGE> 41
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly canceled by the Trustee. If
the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of by the Trustee in accordance with its customary
procedures, unless by Company Order the Company shall direct that canceled
Securities be returned to it.
SECTION 312. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 with
respect to any Securities, interest, if any, on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 313. CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF SECURITIES.
(a) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, and with
respect to Bearer Securities of any series, except as provided in paragraph (d)
below, payment of the principal of (and premium, if any) and interest, if any,
on any Registered or Bearer Security of such series will be made in Dollars. The
provisions of this Section 313 may be modified or superseded with respect to any
Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option, subject
to paragraph (d) below, to receive payments of principal of (or premium, if any)
or interest, if any, on such Registered Securities in any of the Currencies
which may be designated for such election by delivering to the Trustee a written
election with signature guaranties and in the applicable form established
pursuant to Section 301, not later than the close of business on the Election
Date immediately preceding the applicable payment date. If a Holder so elects to
receive such payments in any such Currency, such election will remain in effect
for such Holder or any transferee of such Holder until changed by such Holder or
such transferee by written notice to the Trustee (but any such change must be
made not later than the close of business on the Election Date immediately
preceding the next payment date to be effective for the payment to be made on
such payment date and no such change of election may be made with respect to
payments to be made on any Registered Security of such series with respect to
which an Event of Default has occurred or with respect to which the Company has
deposited funds pursuant to Article Four or Fourteen or with respect to which a
notice of redemption has been given by the Company or a notice of option to
elect repayment has been sent by such Holder or such transferee). Any Holder of
any such Registered Security who shall not have delivered any such election to
the Trustee not later than the close of business on
36
<PAGE> 42
the applicable Election Date will be paid the amount due on the applicable
payment date in the relevant Currency as provided in Section 313(a). The Trustee
shall notify the Exchange Rate Agent as soon as practicable after the Election
Date of the aggregate principal amount of Registered Securities for which
Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301, then, unless otherwise specified pursuant to Section 301, not later
than the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying, in the Currency in which Registered
Securities of such series are payable, the respective aggregate amounts of
principal of (and premium, if any) and interest, if any, on the Registered
Securities to be paid on such payment date, specifying the amounts in such
Currency so payable in respect of the Registered Securities as to which the
Holders of Registered Securities of such series shall have elected to be paid in
another Currency as provided in paragraph (b) above. If the election referred to
in paragraph (b) above has been provided for pursuant to Section 301 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 301, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officers' Certificate in respect of the Dollar or Foreign
Currency payments to be made on such payment date. Unless otherwise specified
pursuant to Section 301, the Dollar or Foreign Currency amount receivable by
Holders of Registered Securities who have elected payment in a Currency as
provided in paragraph (b) above shall be determined by the Company on the basis
of the applicable Market Exchange Rate in effect on the third Business Day (the
"Valuation Date") immediately preceding each payment date, and such
determination shall be conclusive and binding for all purposes, absent manifest
error.
(d) Unless otherwise specified pursuant to Section 301, if the
Holder of a Registered Security shall have elected to be paid in a Currency
other than Dollars as provided in paragraph (b) above, and a Conversion Event
occurs with respect to such elected Currency, such Holder shall receive payment
in Dollars.
(e) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(f) The "Dollar Equivalent of the Currency Unit" shall be
determined as specified pursuant to Section 301. "Election Date" shall mean the
date for any series of Registered Securities as specified pursuant to clause
(11) of Section 301 by which the written election referred to in paragraph (b)
above may be made.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as
specified above shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Trustee and all Holders of such Securities
37
<PAGE> 43
denominated or payable in the relevant Currency. The Exchange Rate Agent shall
promptly give written notice to the Company and the Trustee of any such decision
or determination.
Except as otherwise provided pursuant to Section 301, in the event that
the Company determines in good faith that a Conversion Event has occurred with
respect to a Foreign Currency, the Company will immediately give written notice
thereof to the Trustee and to the Exchange Rate Agent (and the Trustee will
promptly thereafter give notice in the manner provided for in Section 106 to the
affected Holders) specifying the Conversion Date. Except as otherwise provided
pursuant to Section 301, in the event the Company so determines that a
Conversion Event has occurred with respect to any currency unit in which
Securities are payable, the Company will immediately give written notice thereof
to the Trustee and to the Exchange Rate Agent (and the Trustee will promptly
thereafter give notice in the manner provided for in Section 106 to the affected
Holders) specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event the Company determines
in good faith that any subsequent change in any Component Currency as set forth
in the definition of Specified Amount above has occurred, the Company will
similarly give written notice to the Trustee and the Exchange Rate Agent.
The Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the Exchange Rate
Agent and shall not otherwise have any duty or obligation to determine the
accuracy or validity of such information independent of the Company or the
Exchange Rate Agent.
SECTION 314. APPOINTMENT AND RESIGNATION OF SUCCESSOR EXCHANGE RATE
AGENT.
(a) Unless otherwise specified pursuant to Section 301, if and so
long as the Securities of any series may be payable in a Currency other than
Dollars, or so long as it is required under any other provision of this
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent. The Company
will cause the Exchange Rate Agent to make the necessary foreign exchange
determinations at the time and in the manner specified pursuant to Section 301
for the purpose of determining the applicable rate of exchange and, if
applicable, for the purpose of converting Dollars into the applicable payment
Currency for the payment of principal (and premium, if any) and interest, if
any, pursuant to Section 313.
(b) No resignation of the Exchange Rate Agent and no appointment
of a successor Exchange Rate Agent pursuant to this Section shall become
effective until the acceptance of appointment by the successor Exchange Rate
Agent as evidenced by a written instrument delivered to the Company and the
Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agent for any cause with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
38
<PAGE> 44
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are payable in the same Currency).
SECTION 315. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use) in addition to serial numbers, and, if so, the Trustee shall
use such "CUSIP" numbers in addition to serial numbers in notices as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice and that reliance may be placed
only on the serial or other identification numbers printed on the Securities,
and any such notice shall not be affected by any defect in or omission of such
"CUSIP" numbers. The Company will promptly notify the Trustee of any change in
the "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall, upon Company Request, cease to be of further
effect with respect to any series of Securities specified in such Company
Request (except as to any surviving rights of registration of transfer or
exchange of Securities of such series expressly provided for herein or pursuant
hereto) and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any, appertaining thereto (other
than (i) coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender is not
required or has been waived as provided in Section 306, (ii) Securities and
coupons of such series which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 307, (iii) coupons appertaining to
Securities called for redemption and maturing after the relevant Redemption
Date, whose surrender has been waived as provided in Section 1106, and (iv)
Securities and coupons of such series for whose payment money has theretofore
been deposited in trust with the Trustee or any Paying Agent or segregated and
held in trust by the Company and thereafter repaid to the Company or discharged
from such Trust, as provided in Section 1003) have been delivered to the Trustee
for cancellation; or
39
<PAGE> 45
(B) all Securities of such series and, in the case of (i)
or (ii) below, any coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company, and the Company, in the case of (i), (ii) or
(iii) above, has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an amount in the Currency in
which the Securities of such series are payable, sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and interest, if
any, to the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the case may
be:
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606, the obligations of
the Trustee to any Authenticating Agent under Section 612 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Subsection (1)
of this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest, if any, for whose payment such money has been
deposited with the Trustee. If the Trustee or Paying Agent is unable to apply
any money or Government Obligations in accordance with Section 401 by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture shall be revived and
reinstated as though no deposit had occurred pursuant to Section 401; provided
that if the Company has made any payment of principal of, premium, if any, or
interest on the Securities because of the
40
<PAGE> 46
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of the Securities to receive such payment from the money or
Government Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", 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 government body):
(1) default in the payment of any interest on any Security
when it becomes due and payable, and continuance of such default for a period of
30 days;
(2) default in the payment of the principal of (or premium, if
any, on) any Security when due;
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of the Securities of that series and Article Twelve;
(4) default in the performance, or breach, of any
covenant or warranty of the Company contained in this Indenture (other than a
default in the performance, or breach, of a covenant or warranty that is
specifically dealt with elsewhere herein), and continuance of such default or
breach for a period of 60 days after written notice has been given to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in aggregate principal amount of the Securities then outstanding;
(5) there occurs with respect to any issue or issues of
Indebtedness of the Company or any Restricted Subsidiary having an outstanding
principal amount of $50,000,000 or more in the aggregate for all such issues of
all such Persons, whether such Indebtedness exists on the date of this Indenture
or is hereafter created, (a) an event of default that has caused the holder
thereof to declare such Indebtedness to be due and payable prior to its stated
maturity and such Indebtedness shall not have been discharged in full or such
acceleration shall not have been rescinded or annulled within 30 days of such
acceleration and/or (b) the failure to make a principal payment at the final
(but not any interim) fixed maturity and such defaulted payment shall not have
been made, waived or extended within 30 days of such payment default;
(6) failure by the Company or any of its Restricted
Subsidiaries to pay, bond or otherwise discharge within 60 days one or more
final judgments or court orders for the payment of money the uninsured portion
of which exceeds in the aggregate $50,000,000, which judgments or court orders
are not stayed on appeal or are not otherwise being appropriately contested in
good faith;
41
<PAGE> 47
(7) a court having jurisdiction in the premises enters a
decree or order for (i) relief in respect of the Company or any Restricted
Subsidiary in an involuntary case under any applicable Bankruptcy Law now or
hereafter in effect, (ii) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Restricted Subsidiary or for all or substantially all of the property and assets
of the Company or any Restricted Subsidiary or (iii) the winding up or
liquidation of the affairs of the Company or any Restricted Subsidiary and, in
each case, such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days; or
(8) the Company or any Restricted Subsidiary (i)
commences a voluntary case under any applicable Bankruptcy Law now or hereafter
in effect, or consents to the entry of an order for relief in an involuntary
case under any such law, (ii) consents to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official of the Company or any Restricted Subsidiary or for all or
substantially all of the property and assets of the Company or any Restricted
Subsidiary or (iii) effects any general assignment for the benefit of creditors.
(9) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than as specified in Section 501(7) or
(8)) occurs and is continuing, the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of any series then outstanding
may, and the Trustee at the request of such Holders shall, declare the principal
of all of the outstanding Securities of such series immediately due and payable,
by a notice in writing to the Company (and to the Trustee if given by the
Holders) and, upon any such declaration, such principal shall become due and
payable immediately. If an Event of Default specified in Section 501(7) or (8)
above occurs and is continuing, then such principal 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 of Securities.
At any time after a declaration of acceleration under this Indenture,
but before a judgment or decree for payment of the money due has been obtained
by the Trustee, the Holders of a majority in aggregate principal amount of the
outstanding Securities, by written notice to the Company and the Trustee, may
rescind such declaration and its consequences if:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities,
(B) all unpaid principal of (and premium, if any, on)
any outstanding Securities that has become due otherwise than
by such declaration of acceleration and interest thereon at
the rate borne by the Securities,
42
<PAGE> 48
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest and overdue principal
amount at the rate borne by the Securities, and
(D) all sums paid or advanced by the Trustee under
this Indenture and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(ii) all Events of Default, other than the non-payment of
amounts of principal of (or premium, if any, on) or interest on the Securities
that have become due solely by such declaration of acceleration, have been cured
or waived.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if:
(a) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(b) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Stated Maturity or other maturity thereof,
the Company shall, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal (and premium, if any) and interest, with
interest upon the overdue principal (and premium, if any) and, to the extent
that payment of such interest shall be legally enforceable, upon overdue
installments of interest, at the rate borne by the Securities; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee under Section 606.
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 or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default with respect to Securities of any series (or of
all series, as the case may be) occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the
43
<PAGE> 49
Trustee shall deem most effectual to protect and enforce 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 subject, however, to Section 513. No recovery of any such judgment
upon any property of the Company shall affect or impair any rights, powers or
remedies of the Trustee or the Holders.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, upon the Securities or the property
of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
overdue principal, premium, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect of the
Securities, to take such other actions (including participating as a member,
voting or otherwise, of any official committee of creditors appointed in such
matter) and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any Custodian 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 the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of such Holders, vote for the election of a
trustee in bankruptcy or other similar official.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production
44
<PAGE> 50
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name and as trustee of an express
trust, and any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders of
the Securities in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest on the Securities in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal (and premium, if any) and interest, respectively;
and
THIRD: The balance, if any, to the Person or Persons entitled thereto,
including the Company or any other obligor on the Securities, as their interests
may appear or as a court of competent jurisdiction may direct, provided that all
sums due and owing to the Holders and the Trustee have been paid in full as
required by this Indenture.
SECTION 507. 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
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 30 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
45
<PAGE> 51
(5) no direction inconsistent with such written request has been
given to the Trustee during such 30-day period by the Holders of a majority or
more in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Securities of the same series or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all Holders of Securities of the same series.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 308) interest, if any, 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, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case 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 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in Section 307, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Securities or
coupons is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any 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
46
<PAGE> 52
right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. CONTROL BY HOLDERS.
With respect to the Securities of any series, the Holders of not less
than a majority in principal amount of the Outstanding Securities of such series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, provided that in each case
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or expose the Trustee to personal liability;
(2) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders not consenting; and
(3) subject to the provisions of the TIA Section 315, the Trustee
may take any other action deemed proper by the Trustee which is not inconsistent
with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
Subject to Section 502, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past Default or Event
of Default under this Indenture, except a default in the payment of the
principal of (and premium, if any) or interest on any Note, or in respect of a
covenant or provision that under this Indenture cannot be modified or amended
without the consent of the Holder of each Note outstanding.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of Securities of
any series 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 and expenses, 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 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
47
<PAGE> 53
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest on Securities of any series on or
after the respective Stated Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date); provided that neither this
Section 514 nor the Trust Indenture Act shall be deemed to authorize any court
to require such an undertaking or to make such an assessment in any suit
instituted by the Company.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS.
If a Default or an Event of Default occurs with respect to the
Securities of any series and is continuing and is known to the Trustee, the
Trustee shall mail to all Holders of the Securities notice of the Default or
Event of Default within 90 days after the occurrence thereof. Except in the case
of a Default or an Event of Default in payment of principal of (and premium, if
any, on) or interest on any Securities, the Trustee may withhold the notice to
the Holders if a committee of its trust officers in good faith determines that
withholding such notice is in the interests of the Holders.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(2) 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;
48
<PAGE> 54
(3) 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,
request and rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and any
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(5) 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 of Securities of any series 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;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney at the sole cost of the Company;
(7) 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; and
(8) 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;
and the Trustee shall not be deemed to have notice of any Default or Event of
Default, except in the case of an event of default involving failures by the
Company to pay principal, premium, if any, or interest on the Securities, unless
a Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office of the Trustee, and such notice references
the Company, the Securities or this Indenture.
SECTION 603. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities, except for the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons. The Trustee shall not be accountable for the use or
application by the
49
<PAGE> 55
Company of Securities or the proceeds thereof, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the
statements to be made by it in a Statement of Eligibility on Form T-1 supplied
to the Company are true and accurate, subject to the qualifications set forth
therein. Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of Securities or the proceeds thereof.
SECTION 604. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and coupons
and, subject to TIA Sections 310(b) and 311, 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. The Trustee is permitted
to engage in other transactions; provided, however, that if it acquires any
conflicting interest it must eliminate such conflict or resign.
SECTION 605. 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 606. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as
shall be agreed to in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel and costs and expenses of collection),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee
(and their respective directors, officers, employees and agents) for, and to
hold it harmless against, any and all loss, damage, claim, 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.
50
<PAGE> 56
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture and the resignation or removal of the Trustee. As
security for the performance of such obligations of the Company, the Trustee
shall have a claim prior to the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the payment of
principal of (and premium, if any) or interest on particular Securities.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(7) or (8), the expenses (including
the reasonable charges and expenses of its counsel) of and the compensation for
such services are intended to constitute expenses of administration under
Bankruptcy Law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING
INTERESTS.
There shall be at all times a Trustee hereunder which shall be eligible
to act as Trustee under TIA Section 310(a)(1) and which shall have an office in
The City of New York, and shall have a combined capital and surplus of at least
$100,000,000. If the Trustee does not have an office in The City of New York,
the Trustee may appoint an agent in The City of New York reasonably acceptable
to the Company to conduct any activities which the Trustee may be required under
this Indenture to conduct in The City of New York. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section 607, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 607, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 609 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may, at the
expense of the Company, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
51
<PAGE> 57
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of removal, the removed Trustee may, at the expense of the Company,
petition a court of competent jurisdiction for the appointment of a successor
Trustee.
(d) If at any time;
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
the Holder of any Security who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series). If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with Section 609, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If within 30 days of resignation or
removal of the Trustee, no successor Trustee with respect to the Securities of
any series shall have been so appointed by the Company or the Holders and
accepted appointment in the manner hereinafter provided, any Holder who has been
a bona fide Holder of a Security of such series for
52
<PAGE> 58
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to the Holders of Securities of such series in the manner provided for in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; provided, however, that the
retiring Trustee shall continue to be entitled to the benefit of Section 606;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring
53
<PAGE> 59
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates. Whenever there is a
successor Trustee with respect to one or more (but less than all) series of
securities issued pursuant to this Indenture, the terms "Indenture" and
"Securities" shall have the meanings specified in the provisos to the respective
definitions of those terms in Section 101 which contemplate such situation.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities. In
case any of the Securities shall not have been authenticated by such predecessor
Trustee, any successor Trustee may authenticate such Securities either in the
name of any predecessor hereunder or in the name of the successor Trustee. In
all such cases such certificates shall have the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding, the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series and the Trustee shall give written notice
of such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for in
Section 106. 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. Any such appointment shall be evidenced
by an instrument in writing signed by a Responsible Officer of the Trustee, and
a copy of such instrument shall be promptly furnished to the Company. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by
54
<PAGE> 60
the Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any state thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by federal or state authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give written notice of
such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
Dated:............
55
<PAGE> 61
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
SECTION 612. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor under the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that none of the Company or the
Trustee or any agent of either of them shall be held accountable by reason of
the disclosure of any information as to the names and addresses of the Holders
in accordance with TIA Section 312, 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 TIA Section
312(b).
SECTION 702. REPORTS BY TRUSTEE.
Within 60 days after May 15 of each year commencing with the first May
15 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit to the Holders of Securities, in the manner and to the
extent provided in TIA Section 313(c), a brief report dated as of such May 15 if
required by TIA Section 313(a).
SECTION 703. REPORTS BY COMPANY.
The Company shall:
(1) file with the Trustee, within 30 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
56
<PAGE> 62
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 such Sections, then it shall 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;
(2) 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
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof with
the Trustee, in the manner and to the extent provided in TIA Section 313(c),
such summaries of any information, documents and reports required to be filed by
the Company pursuant to Subsections (1) and (2) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE EIGHT
MERGER, CONSOLIDATION OR SALE OF ASSETS
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge with or into any other
Person or, directly or indirectly, convey, transfer or lease its properties and
assets substantially as an entirety to any Person or Persons, unless:
(a) either (i) the Company is the surviving corporation or (ii)
the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or the Person that acquires by sale, assignment,
transfer, lease or other disposition the properties and assets of the Company
substantially as an entirety (the "Surviving Entity") (A) is a corporation,
partnership or trust organized and validly existing under the laws of the United
States, any state thereof or the District of Columbia and (B) expressly assumes,
by a supplemental indenture in form satisfactory to the Trustee, all of the
Company's obligations under this Indenture and the Securities;
(b) immediately after giving effect to such transaction, and after
giving effect thereto, no Default or Event of Default shall have occurred and be
continuing; and
57
<PAGE> 63
(c) the Company delivers, or causes to be delivered, to the
Trustee, in form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each stating that such
transaction complies with the requirements of this Indenture.
SECTION 802. SUCCESSOR SUBSTITUTED.
In the event of any transaction described in and complying with the
conditions listed in Section 801 in which the Company is not the continuing
obligor under this Indenture, the Surviving Entity shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture, and thereafter the Company shall, except in the case of a lease,
be discharged from all its obligations and covenants under this Indenture and
the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in
the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities and any related coupons (and if such
covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are being included solely for the benefit of such
series) or to surrender any right or power herein or in the Securities conferred
upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be for the benefit of less than all series of Securities, stating
that such Events of Default are being included solely for the benefit of such
series); or
(4) to add to or change 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 any premium or
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 that any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material respect; or
58
<PAGE> 64
(5) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become effective
only when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision; or
(6) to secure the Securities, if the Company so elects; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
609(b); or
(9) to close this Indenture with respect to the authentication and
delivery of additional series of Securities; or
(10) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture; provided that such action shall not adversely affect the
interests of the Holders of Securities of any series and any related coupons in
any material respect; or
(11) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 1401, 1402 and 1403;
provided that any such action shall not adversely affect the interests of the
Holders of Securities of such series and any related coupons or any other series
of Securities in any material respect;
(12) to make any other change that does not adversely affect the rights
of any Holder; or
(13) to comply with any requirement of the Commission in order to
effect and maintain the qualification of this Indenture under the Trust
Indenture Act.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities of any series, 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 one or more 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 which affect
such series of Securities or of modifying in any manner the rights of the
Holders of Securities of such
59
<PAGE> 65
series under this Indenture; provided, however, that no such supplemental
indenture amendment or waiver shall, without the consent of the Holder of each
Outstanding Security of such series affected thereby:
(1) change the Stated Maturity of the principal of (or premium, if
any) or any installment of interest on any Security of such series, or reduce
the principal amount thereof (or premium, if any) or the rate of interest, if
any, thereon, or reduce the amount of the principal of an Original Issue
Discount Security of such series that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
the amount thereof provable in bankruptcy pursuant to Section 504, or adversely
affect any right of repayment at the option of any Holder of any Security of
such series, or change any Place of Payment where, or the Currency in which, any
Security of such series or any premium or interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption or repayment at the
option of the Holder, on or after the Redemption Date or Repayment Date, as the
case may be), or adversely affect any right to convert or exchange any Security
as may be provided pursuant to Section 301 herein; or
(2) reduce the percentage in principal amount of the Outstanding
Securities of such 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 which affect
such series or certain defaults applicable to such series hereunder and their
consequences) provided for in this Indenture, or reduce the requirements of
Section 1504 for a quorum or voting with respect to Securities of such series;
or
(3) modify any of the provisions of this Section 902, Section 513
or Section 1014, except to increase any such percentage or to provide that
certain other provisions of this Indenture which affect such series cannot be
modified or waived without the consent of the Holder of each Outstanding
Security affected thereby of such series.
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. Any such
supplemental indenture adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture, or modifying in any manner
the rights of the Holders of Securities of such series, shall not affect the
rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the
60
<PAGE> 66
Trustee shall be entitled to receive, and (subject to TIA Section 315(a) through
315(d) and Section 602 hereof) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.
The Company covenants and agrees for the benefit of the Holders of each
series of Securities and any related coupons that it will duly and punctually
pay the principal of (and premium, if any) and interest, if any, on the
Securities of that series in accordance with the terms of the Securities, any
coupons appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 301 with respect to any series of Securities, any
interest installments
61
<PAGE> 67
due on Bearer Securities on or before Maturity shall be payable only upon
presentation and surrender of the several coupons for such interest installments
as are evidenced thereby as they severally mature.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
If the Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange, where Securities of that series that
are convertible or exchangeable may be surrendered for conversion or exchange,
as applicable and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities, the
Company will maintain (A) in The City of New York, an office or agency where any
Registered 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, where Securities of that series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise), (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;
provided, however, that, if the Securities of that series are listed on any
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 any required city located outside the United States 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 that 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, where Securities of
that series that are convertible and exchangeable may be surrendered for
conversion or exchange, as applicable and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served.
The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of any series and the
related coupons may be presented and surrendered for payment at the offices
specified in the Security, in London, and the Company hereby appoints the same
as its agents to receive such respective presentations, surrenders, notices and
demands.
62
<PAGE> 68
Unless otherwise specified with respect to any Securities pursuant to
Section 301, 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, that, if
the Securities of a series are payable in Dollars, payment of principal of (and
premium, if any) and interest, if any, on any Bearer Security shall be made at
the office of the Company's Paying Agent in The City of New York, if (but only
if) payment in Dollars of the full amount of such principal, premium or
interest, as the case may be, at all offices or agencies outside the United
States maintained for such purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
any such designation; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above 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 otherwise specified with respect to
any Securities as contemplated by Section 301 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of Securities the office or agency of the Company in the Borough of Manhattan.
The City of New York, and initially appoints the Trustee at its Corporate Trust
Office as Paying Agent in such city and as its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series may be payable in a
Currency other than Dollars, or so long as it is required under any other
provision of the Indenture, then the Company will maintain with respect to each
such series of Securities, or as so required, at least one Exchange Rate Agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities and any related coupons, it will, on or
before each due date of the principal of (or premium, if any) or interest, if
any, on any of the Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 313(b), 313(d) and 313(e)) sufficient to pay the principal
of (or premium, if any) or interest, if any, on Securities of such series 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 and any related coupons, it will, prior to or on each due
date of the principal of (or premium, if any) or interest, if any, on any
Securities of that series, deposit with a Paying Agent
63
<PAGE> 69
a sum (in the Currency described in the preceding paragraph) sufficient to pay
the principal (or premium, if any) or interest, if any, 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:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) and interest, if any, on Securities of such series in
trust for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any payment
of principal of (or premium, if any) or interest, if any, on the Securities of
such series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Except as provided in the Securities of any series, any money deposited
with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of (or premium, if any) or interest, if any, on any
Security of any series, or any coupon appertaining thereto, and remaining
unclaimed for two years after such principal, premium or interest has become due
and payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security or coupon shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in an Authorized
Newspaper, 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 1004. CORPORATE EXISTENCE.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Restricted
64
<PAGE> 70
Subsidiary and the corporate rights (charter and statutory), licenses and
franchises of the Company and each Restricted Subsidiary; provided, however,
that the Company shall not be required to preserve any such existence (except of
the Company), right, license or franchise if the Board of Directors of the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and each of its Restricted
Subsidiaries, taken as a whole.
SECTION 1005. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary; provided, however, that the Company shall not be required
to pay or discharge or cause to be paid or discharged any such tax, assessment
or charge whose amount, applicability or validity is being contested in good
faith by appropriate proceedings.
SECTION 1006. OTHER COVENANTS.
The applicable prospectus supplement will describe any material
covenants in respect of a series of Securities.
SECTION 1007. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year ending after the date hereof, a brief certificate of its
principal executive officer, principal financial officer or principal accounting
officer stating whether, to such officer's knowledge, the Company is in
compliance with all covenants and conditions to be complied with by it under
this Indenture. For purposes of this Section 1007, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 301 for Securities of
any series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Company, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter
65
<PAGE> 71
notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed and shall deliver to the Trustee such documentation and records as
shall enable the Trustee to select the Securities to be redeemed pursuant to
Section 1103. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal of Securities of such series; provided,
however, that no such partial redemption shall reduce the portion of the
principal amount of a Security not redeemed to less than the minimum authorized
denomination for Securities of such series established pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Except as otherwise specified as contemplated by Section 301, notice of
redemption shall be given in the manner provided for in Section 106 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 identify the Securities (including
CUSIP number, if any) to be redeemed and shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 1106, if any,
(3) if less than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed,
66
<PAGE> 72
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the holder will receive,
without charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and accrued
interest, if any, to the Redemption Date payable as provided in Section 1106
will become due and payable upon each such Security, or the portion thereof, to
be redeemed and, if applicable, that interest thereon will cease to accrue on
and after said date,
(6) the Place or Places of Payment where such Securities, together
in the case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be accompanied
by all coupons maturing subsequent to the Redemption Date or the amount of any
such missing coupon or coupons will be deducted from the Redemption Price unless
security or indemnity satisfactory to the Company, the Trustee and any Paying
Agent is furnished, and
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on such Redemption Date pursuant to Section 306 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
The Company shall deposit with the Trustee or with a Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) on or prior to the Redemption Date an amount of money
in the Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 313(b), 313(d) and 313(e))
sufficient to pay the Redemption Price of, and accrued interest, if any, on, all
the Securities which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein
67
<PAGE> 73
specified in the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series and except, if applicable, as provided in Sections 313(b), 313(d)
and 313(e)) (together with accrued interest, if any, to the Redemption Date),
and from and after such date (unless the Company shall default in the payment of
the Redemption Price and accrued interest, if any) such Securities shall, if the
same were interest-bearing, 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 Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; 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
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of coupons
for such interest; and provided further that 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 Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
308.
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 (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered at a Place
of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
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
68
<PAGE> 74
Security or Securities of the same series, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
Retirements of Securities of any series pursuant to any sinking fund
shall be made in accordance with the terms of such Securities and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
Subject to Section 1203, in lieu of making all or any part of any
mandatory sinking fund payment with respect to any Securities of a series in
cash, the Company may at its option (1) deliver to the Trustee Outstanding
Securities of a series (other than any previously called for redemption)
theretofore purchased or otherwise acquired by the Company together in the case
of any Bearer Securities of such series with all unmatured coupons appertaining
thereto, and/or (2) receive credit for the principal amount of Securities of
such series which have been previously delivered to the Trustee by the Company
or for Securities of such series which have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of the same series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided, however, that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next
69
<PAGE> 75
ensuing sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satisfied by payment of cash
in the Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 313(b), 313(d) and 313(e))
and the portion thereof, if any, which is to be satisfied by delivering or
crediting Securities of that series pursuant to Section 1202 (which Securities
will, if not previously delivered, accompany such certificate) and whether the
Company intends to exercise its right to make a permitted optional sinking fund
payment with respect to such series. Such certificate shall be irrevocable and
upon its delivery the Company shall be obligated to make the cash payment or
payments therein referred to, if any, on or before the next succeeding sinking
fund payment date. In the case of the failure of the Company to deliver such
certificate, the sinking fund payment due on the next succeeding sinking fund
payment date for that series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of such Securities subject to a
mandatory sinking fund payment without the option to deliver or credit
Securities as provided in Section 1202 and without the right to make any
optional sinking fund payment, if any, with respect to such series.
Not more than 60 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
On or prior to any sinking fund payment date, the Company shall pay to
the Trustee or a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) in cash a sum
equal to any interest that will accrue to the date fixed for redemption of
Securities or portions thereof to be redeemed on such sinking fund payment date
pursuant to this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund for any
series of Securities, if at any time the amount of cash to be paid into such
sinking fund on the next succeeding sinking fund payment date, together with any
unused balance of any preceding sinking fund payment or payments for such
series, does not exceed in the aggregate $100,000, the Trustee, unless requested
by the Company, shall not give the next succeeding notice of the redemption of
Securities of such series through the operation of the sinking fund. Any such
unused balance of moneys deposited in such sinking fund shall be added to the
sinking fund payment for such series to be made in cash on the next succeeding
sinking fund payment date or, at the written request of the Company, shall be
applied at any time or from time to time to the purchase of Securities of such
series, by public or private purchase, in the open market or otherwise, at a
purchase price for such Securities (excluding accrued interest and brokerage
commissions, for which the Trustee or any Paying Agent will be promptly
reimbursed by the Company) not in excess of the principal amount thereof.
70
<PAGE> 76
ARTICLE THIRTEEN
PURCHASE AT OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE.
Purchase by the Company of Securities of any series before their Stated
Maturity at the option of Holders thereof shall be made in accordance with the
terms of such Securities and (except as otherwise specified as contemplated by
Section 301 for Securities of any series) in accordance with this Article.
SECTION 1302. PURCHASE OF SECURITIES.
Securities of any series subject to purchase in whole or in part at the
option of the Holders thereof will, unless otherwise provided in the terms of
such Securities, be purchased at a price equal to the principal amount thereof,
together with interest, if any, thereon accrued to the Purchase Date specified
in or pursuant to the terms of such Securities. The Company covenants that on or
before the Purchase Date it will deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 1003) an amount of money in the Currency in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 313(b), 313(d) and 313(e)) sufficient to pay
the principal (or, if so provided by the terms of the Securities of any series,
a percentage of the principal) of and (except if the Purchase Date shall be an
Interest Payment Date) accrued interest, if any, on, all the Securities or
portions thereof, as the case may be, to be purchased on such date.
SECTION 1303. EXERCISE OF OPTION.
Securities of any series subject to purchase at the option of the
Holders thereof will contain an "Option to Elect Purchase" form on the reverse
of such Securities. To be purchased at the option of the Holder, any Security so
providing for such purchase, with the "Option to Elect Purchase" form on the
reverse of such Security duly completed by the Holder (or by the Holder's
attorney duly authorized in writing), must be received by the Company at the
Place of Payment therefor specified in the terms of such Security (or at such
other place or places of which the Company shall from time to time notify the
Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Purchase Date. If less than the entire principal amount of such
Security is to be purchased in accordance with the terms of such Security, the
principal amount of such Security to be purchased, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
purchased, must be specified. The principal amount of any Security providing for
purchase at the option of the Holder thereof may not be purchased in part if,
following such purchase, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be purchased is a part. Except as otherwise may be
provided by the terms of any Security providing for purchase at the option of
the Holder thereof, exercise of the purchase option by the Holder shall be
irrevocable unless waived by the Company.
71
<PAGE> 77
SECTION 1304. WHEN SECURITIES PRESENTED FOR PURCHASE BECOME DUE AND
PAYABLE.
If Securities of any series providing for purchase at the option of the
Holders thereof shall have been surrendered as provided in this Article and as
provided by or pursuant to the terms of such Securities, such Securities or the
portions thereof, as the case may be, to be purchased shall become due and
payable and shall be paid by the Company on the Purchase Date therein specified,
and on and after such Purchase Date (unless the Company shall default in the
payment of such Securities on such Purchase Date) such Securities shall, if the
same were interest-bearing, cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be purchased, except to the
extent provided below, shall be void. Upon surrender of any such Security for
purchase in accordance with such provisions, together with all coupons, if any,
appertaining thereto maturing after the Purchase Date, the principal amount of
such Security so to be purchased shall be paid by the Company, together with
accrued interest, if any, to the Purchase Date; provided however, that coupons
whose Stated Maturity is on or prior to the Purchase Date shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified pursuant to Section
301, only upon presentation and surrender of such coupons; and provided further
that, in the case of Registered Securities, installments of interest, if any,
whose Stated Maturity is on or prior to the Purchase Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 308.
If any Bearer Security surrendered for purchase shall not be
accompanied by all appurtenant coupons maturing after the Purchase Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 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 amid 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 as provided in the preceding sentence, 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 (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for purchase shall
not be so purchased upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Purchase Date) shall, until paid, bear
interest from the Purchase Date at the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) set forth in such Security.
72
<PAGE> 78
SECTION 1305. SECURITIES PURCHASED IN PART.
Upon surrender of any Registered Security which is to be purchased in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge and at the
expense of the Company, a new Registered Security or Securities of the same
series, of any authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the principal of
such Security so surrendered which is not to be purchased.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, the provisions of this Article Fourteen shall apply to
each series of Securities, and the Company may, at its option, effect defeasance
of the Securities of or within a series under Section 1402, or covenant
defeasance of or within a series under Section 1403 in accordance with the terms
of such Securities and in accordance with this Article.
SECTION 1402. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be deemed to have been discharged from its obligations with respect to such
Outstanding Securities and any related coupons on the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities
and any related coupons, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 1405 and the other Sections of this Indenture
referred to in (A) and (B) below, and to have satisfied all its other
obligations under such Securities and any related coupons and this Indenture
insofar as such Securities and any related coupons are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any related coupons to receive, solely from the trust
fund described in Section 1404 and as more fully set forth in such Section,
payments in respect of the principal of (and premium, if any) and interest, if
any, on such Securities and any related coupons when such payments are due, (B)
the Company's obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003, (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (D) this Article Fourteen. Subject to compliance
with this Article Fourteen, the Company may exercise its option under this
Section 1402 notwithstanding the prior exercise of its option under Section 1403
with respect to such Securities and any related coupons.
73
<PAGE> 79
SECTION 1403. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 1401 of the option applicable
to this Section 1403 with respect to any Securities of or within a series, the
Company shall be released from its obligations under any covenant under Article
Eight and in Sections 1004 through 1008, and, if specified pursuant to Section
301, its obligations under any other covenant, with respect to such Outstanding
Securities and any related coupons on and after the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "Covenant Defeasance"), and
such Securities and any related coupons shall thereafter be deemed to be not
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "Outstanding" for all other purposes
hereunder (it being understood that such Securities shall not be deemed
Outstanding for financial accounting purposes). For this purpose, such covenant
defeasance means that, with respect to such Outstanding Securities and any
related coupons, the Company may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 501(4) or Section
501(9) or otherwise, as the case may be, but, except as specified above, the
remainder of this Indenture and such Securities and any related coupons shall be
unaffected thereby. In addition, upon the Company's exercise under Section 1401
of the option applicable to Section 1403, Sections 501(4) through 501(6) shall
not constitute Events of Default.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section
1402 or Section 1403 to any Outstanding Securities of or within a series and any
related coupons:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 607 who shall agree to comply with the provisions of this Article
Fourteen applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities and any related coupons, (A)
money (in Dollars or in the Foreign Currency in which the applicable series of
Securities is payable) in an amount, or (B) Government Obligations applicable to
such Securities which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment of principal of and premium, if any, and
interest, if any, under such Securities and any related coupons, money (in
Dollars or in the Foreign Currency in which the applicable series of Securities
is payable) in an amount, or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (i) the principal of (and premium, if any) and
interest, if any, on such Outstanding Securities and any related coupons on the
Stated Maturity (or Redemption Date, if applicable) of such principal (and
premium, if any) or installment of interest, if any, and (ii) any mandatory
74
<PAGE> 80
sinking fund payments or analogous payments applicable to such Outstanding
Securities and any related coupons on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such Securities
and any related coupons; provided that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such Government Obligations to
said payments with respect to such Securities and any related coupons. Before
such a deposit, the Company may give to the Trustee, in accordance with Section
1102 hereof, a notice of its election to redeem all or any portion of such
Outstanding Securities at a future date in accordance with the terms of the
Securities of such series and Article Eleven hereof, which notice shall be
irrevocable. Such irrevocable redemption notice, if given, shall be given effect
in applying the foregoing.
(2) No Default or Event of Default with respect to such Securities
or any related coupons shall have occurred and be continuing on the date of such
deposit or, insofar as paragraphs (7) and (8) of Section 501 are concerned, at
any time during the period ending on the 91st day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(3) No event or condition shall exist that would prevent the
Company from making payments of the principal of (and premium, if any) or
interest on the Securities on the date of such deposit or at any time during the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party or by
which it is bound or cause the Trustee or the trust so created to be subject to
the Investment Company Act of 1940, as amended.
(5) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (y) since the date of execution of this Indenture, there
has been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the Holders
of such Outstanding Securities and any related coupons will not recognize
income, gain or loss for federal income tax purposes as a result of such
defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such defeasance
had not occurred.
(6) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any related coupons will not
recognize income, gain or loss for federal income tax purposes as a result of
such covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
75
<PAGE> 81
(7) In the case of an election under either Section 1402 or 1403,
the Company shall represent to the Trustee that the deposit made by the Company
pursuant to its election under Section 1402 or 1403 was not made by the Company
with the intent of preferring the Holders of Securities of any series over other
creditors of the Company or with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others.
(8) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations in connection
therewith pursuant to Section 301.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1402 or
the covenant defeasance under Section 1403 (as the case may be) have been
complied with.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 1405, the
"Trustee") pursuant to Section 1404 in respect of such Outstanding Securities
and any related coupons shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and any related coupons 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 Holders of such Securities and any related coupons of all sums
due and to become due thereon in respect of principal (and premium, if any) and
interest, if any, but such money need not be segregated from other funds except
to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(1) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 313(b) or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 1404(1) has been made in respect of such Security, or (b) a
Conversion Event occurs as contemplated in Section 313(d) or 313(e) or by the
terms of any Security in respect of which the deposit pursuant to Section
1404(1) has been made, the indebtedness represented by such Security and any
related coupons shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Security as they become due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result of
such election or Conversion Event based on the applicable Market Exchange Rate
for such Currency in effect on the third Business Day prior to each payment
date, except, with respect to a Conversion Event, for such Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
76
<PAGE> 82
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any related coupons.
Anything in this Article Fourteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 1404 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance, as applicable, in accordance with
this Article.
SECTION 1406. REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1405 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such
Securities and any related coupons shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1402 or 1403, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1405; provided, however, that if the Company makes any
payment of principal of (or premium, if any) or interest, if any, on any such
Security or any related coupon following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
and any related coupons to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
If Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be held
at such time and at such place in The City of New York or in London as the
Trustee shall determine. Notice of every meeting of Holders of
77
<PAGE> 83
Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided for in Section 106, not less than 21 nor more than
180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in 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 1501, 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 paragraph (a)
of this Section.
SECTION 1503. 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 Person
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 1504. 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 not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such 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 any other case the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1502(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
any adjourned meeting shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
78
<PAGE> 84
Subject to the foregoing, at the reconvening of any meeting adjourned
for lack of a quorum the Persons entitled to vote 25% in principal amount of the
Outstanding Securities at the time shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of
not less than a majority in principal amount of the Outstanding Securities of
such series; provided however, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action 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 not less than such specified percentage in
principal amount of the Outstanding Securities of such 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.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for such meeting; and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under this
Indenture.
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS.
(a) Notwithstanding any provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a 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
79
<PAGE> 85
specified in Section 104 and the appointment of any proxy shall be proved in the
manner specified in Section 104 or by having the signature of the person
executing the proxy witnessed or guaranteed by any trust company, bank or banker
authorized by Section 104 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 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1502(b), 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 chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of
Outstanding Securities of such series held or represented by him (determined as
specified in the definition of "Outstanding" in Section 101); provided, however,
that no vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 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 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the Secretary of the meeting and there shall be
attached to 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 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
80
<PAGE> 86
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
SCI SYSTEMS, INC.
By:
----------------------------------
Name:
----------------------------
Title:
----------------------------
________________, As Trustee
By:
----------------------------------
Name:
----------------------------
Title:
----------------------------
81
<PAGE> 87
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[INSERT TITLE OR SUFFICIENT DESCRIPTION
OF SECURITIES TO BE DELIVERED]
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate the income of which is subject
to United States federal income taxation regardless of its source, or any trust
whose administration is subject to the primary supervision of a United States
court and which has one or more United States fiduciaries who have the authority
to control all substantial decisions of the trust ("United States person(s)"),
(ii) are owned by United States person(s) that are (a) foreign branches of
United States financial institutions (financial institutions, as defined in the
United States Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred
to as "financial institutions") purchasing for their own account or for resale,
or (b) United States person(s) who acquired the Securities through foreign
branches of United States financial institutions and who hold the Securities
through such United States financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution hereby
agrees, on its own behalf or through its agent, that you may advise SCI Systems,
Inc. or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are
owned by United States or foreign financial institution(s) for purposes of
resale during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)), this is to further
certify that such financial institution has not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
82
<PAGE> 88
This certificate excepts and does not relate to [U.S.$] ____ of such
interest in the above-captioned Securities in respect of which we are not able
to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be 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: [TO BE DATED NO EARLIER THAN THE 15TH DAY PRIOR TO (I) THE
EXCHANGE DATE OR (II) THE RELEVANT INTEREST PAYMENT DATE OCCURRING PRIOR TO THE
EXCHANGE DATE, AS APPLICABLE]
[NAME OF PERSON MAKING CERTIFICATION]
--------------------------------------
(AUTHORIZED SIGNATORY)
Name:
----------------------------------
Title:
----------------------------------
83
<PAGE> 89
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[INSERT TITLE OR SUFFICIENT DESCRIPTION
OF SECURITIES TO BE DELIVERED]
This is to certify that based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S. $] _____ principal
amount of the above-captioned Securities (i) is owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate the income of which is subject to United States
Federal income taxation regardless of its source, or any trust whose
administration is subject to the primary supervision of a United States court
and which has one or more United States fiduciaries who have the authority to
control all substantial decisions of the trust ("United States person(s)"), (ii)
is owned by United States person(s) that are (a) foreign branches of United
States financial institutions (financial institutions, as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred to as
"financial institutions") purchasing for their own account or for resale, or (b)
United States person(s) who acquired the Securities through foreign branches of
United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case (a)
or (b), each such financial institution has agreed, on its own behalf or through
its agent, that we may advise SCI Systems, Inc. or its agent that such financial
institution will 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), or (ii) is owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) and, to
the further effect, that financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the states and District of Columbia); and its "possessions" include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary Global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member
84
<PAGE> 90
Organizations and (ii) as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange (or, if relevant, collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in collection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced r 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: [TO BE DATED NO EARLIER THAN THE EXCHANGE DATE OR THE RELEVANT
INTEREST PAYMENT DATE OCCURRING PRIOR TO THE EXCHANGE DATE, AS APPLICABLE]
[SIGNATURE]
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
85
<PAGE> 1
FORM OF SUBORDINATED INDENTURE
Exhibit 4.2
================================================================================
SCI SYSTEMS, INC.,
Issuer
TO
---------------,
Trustee
Indenture
Dated as of ______________________
---------------
Subordinated Debt Securities
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..............................................1
SECTION 101. DEFINITIONS.......................................................................................1
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.............................................................13
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE...........................................................14
SECTION 104. ACTS OF HOLDERS..................................................................................15
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY............................................................16
SECTION 106. NOTICE TO HOLDERS; WAIVER........................................................................16
SECTION 107. CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST................................................18
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.........................................................18
SECTION 109. SUCCESSORS AND ASSIGNS...........................................................................18
SECTION 110. SEPARABILITY CLAUSE..............................................................................18
SECTION 111. BENEFITS OF INDENTURE............................................................................18
SECTION 112. GOVERNING LAW....................................................................................18
SECTION 113. LEGAL HOLIDAYS...................................................................................19
SECTION 114. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS OR INCORPORATES............19
ARTICLE TWO SECURITY FORMS......................................................................................19
SECTION 201. FORMS GENERALLY..................................................................................19
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION..................................................20
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM...............................................................20
SECTION 204. FORM OF LEGEND FOR BOOK-ENTRY SECURITIES.........................................................21
ARTICLE THREE THE SECURITIES....................................................................................22
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.............................................................22
SECTION 302. DENOMINATIONS....................................................................................25
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING...................................................25
SECTION 304. BOOK-ENTRY SECURITIES............................................................................27
SECTION 305. TEMPORARY SECURITIES.............................................................................28
SECTION 306. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE..............................................31
SECTION 307. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.................................................34
SECTION 308. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED...................................................35
SECTION 309. INTENTIONALLY LEFT BLANK.........................................................................36
SECTION 310. PERSONS DEEMED OWNERS............................................................................37
SECTION 311. CANCELLATION.....................................................................................37
SECTION 312. COMPUTATION OF INTEREST..........................................................................38
SECTION 313. CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF SECURITIES.........................................38
SECTION 314. APPOINTMENT AND RESIGNATION OF SUCCESSOR EXCHANGE RATE AGENT.....................................40
SECTION 315. CUSIP NUMBERS....................................................................................41
ARTICLE FOUR SATISFACTION AND DISCHARGE.........................................................................41
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE..........................................................41
SECTION 402. APPLICATION OF TRUST MONEY.......................................................................42
ARTICLE FIVE REMEDIES...........................................................................................43
SECTION 501. EVENTS OF DEFAULT................................................................................43
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT...............................................44
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE..................................45
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.................................................................46
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES......................................46
SECTION 506. APPLICATION OF MONEY COLLECTED...................................................................47
SECTION 507. LIMITATION ON SUITS..............................................................................47
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST........................48
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES...............................................................48
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE...................................................................48
SECTION 511. DELAY OR OMISSION NOT WAIVER.....................................................................48
SECTION 512. CONTROL BY HOLDERS...............................................................................49
SECTION 513. WAIVER OF PAST DEFAULTS..........................................................................49
SECTION 514. UNDERTAKING FOR COSTS............................................................................49
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.................................................................50
ARTICLE SIX THE TRUSTEE.........................................................................................50
SECTION 601. NOTICE OF DEFAULTS...............................................................................50
SECTION 602. CERTAIN RIGHTS OF TRUSTEE........................................................................50
SECTION 603. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES...................................51
SECTION 604. MAY HOLD SECURITIES..............................................................................52
SECTION 605. MONEY HELD IN TRUST..............................................................................52
SECTION 606. COMPENSATION AND REIMBURSEMENT...................................................................52
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING INTERESTS...................................53
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR................................................53
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR...........................................................55
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS......................................56
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT..............................................................56
SECTION 612. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY................................................58
ARTICLE SEVEN HOLDERS' LIST AND REPORTS BY TRUSTEE AND COMPANY..................................................58
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.....................................................58
SECTION 702. REPORTS BY TRUSTEE...............................................................................58
SECTION 703. REPORTS BY COMPANY...............................................................................58
ARTICLE EIGHT MERGER, CONSOLIDATION OR SALE OF ASSETS...........................................................59
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.............................................59
SECTION 802. SUCCESSOR SUBSTITUTED............................................................................60
ARTICLE NINE SUPPLEMENTAL INDENTURES............................................................................60
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS...............................................60
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS..................................................61
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.............................................................62
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES................................................................63
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT..............................................................63
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES...............................................63
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES................................................................63
ARTICLE TEN COVENANTS...........................................................................................63
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.............................................63
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.................................................................64
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST...............................................65
SECTION 1004. CORPORATE EXISTENCE.............................................................................66
SECTION 1005. PAYMENT OF TAXES AND OTHER CLAIMS...............................................................67
SECTION 1006. OTHER COVENANTS.................................................................................67
SECTION 1007. STATEMENT AS TO COMPLIANCE......................................................................67
ARTICLE ELEVEN REDEMPTION OF SECURITIES.........................................................................67
SECTION 1101. APPLICABILITY OF ARTICLE........................................................................67
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE...........................................................67
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED...............................................68
SECTION 1104. NOTICE OF REDEMPTION............................................................................68
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.....................................................................69
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE...........................................................70
SECTION 1107. SECURITIES REDEEMED IN PART.....................................................................71
ARTICLE TWELVE SINKING FUNDS....................................................................................71
SECTION 1201. APPLICABILITY OF ARTICLE........................................................................71
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES...........................................71
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.......................................................72
ARTICLE THIRTEEN PURCHASE AT OPTION OF HOLDERS...................................................................73
SECTION 1301. APPLICABILITY OF ARTICLE........................................................................73
SECTION 1302. PURCHASE OF SECURITIES..........................................................................73
SECTION 1303. EXERCISE OF OPTION..............................................................................73
SECTION 1304. WHEN SECURITIES PRESENTED FOR PURCHASE BECOME DUE AND PAYABLE...................................74
SECTION 1305. SECURITIES PURCHASED IN PART....................................................................75
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE.............................................................75
SECTION 1401. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE....................................75
SECTION 1402. DEFEASANCE AND DISCHARGE........................................................................75
SECTION 1403. COVENANT DEFEASANCE.............................................................................76
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.................................................76
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS...............................................................78
SECTION 1406. REINSTATEMENT...................................................................................79
ARTICLE FIFTEEN SUBORDINATION OF SECURITIES.....................................................................79
SECTION 1501. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS..................................................79
SECTION 1502. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC..................................................80
SECTION 1503. NO PAYMENT WHEN CERTAIN SENIOR INDEBTEDNESS IN DEFAULT..........................................81
SECTION 1504. PAYMENT PERMITTED IF NO DEFAULT.................................................................82
SECTION 1505. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT.................................................82
SECTION 1506. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.....................................................82
SECTION 1507. TRUSTEE TO EFFECTUATE SUBORDINATION.............................................................83
SECTION 1508. NO WAIVER OF SUBORDINATION PROVISIONS...........................................................83
SECTION 1509. NOTICE TO TRUSTEE...............................................................................83
SECTION 1510. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATION AGENT..................................84
SECTION 1511. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT................................................84
SECTION 1512. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT; PRESERVATION OF TRUSTEE'S RIGHTS....................84
SECTION 1513. APPLICABILITY TO PAYING AGENTS..................................................................85
SECTION 1514. DEFEASANCE OF THIS ARTICLE FIFTEEN..............................................................85
SECTION 1515. SUBORDINATION PROVISIONS CONTROLLING............................................................85
SECTION 1516. ARTICLE FIFTEEN NOT TO PREVENT EVENTS OF DEFAULT................................................85
SECTION 1517. TRUSTEE'S COMPENSATION NOT PREJUDICED...........................................................85
ARTICLE SIXTEEN CONVERSION......................................................................................86
SECTION 1601. CONVERSION PRIVILEGE............................................................................86
SECTION 1602. CONVERSION PROCEDURE............................................................................86
SECTION 1603. FRACTIONAL SHARES...............................................................................87
SECTION 1604. TAXES ON CONVERSION.............................................................................87
SECTION 1605. COMPANY TO PROVIDE STOCK........................................................................88
SECTION 1606. ADJUSTMENT OF CONVERSION PRICE..................................................................88
SECTION 1607. NO ADJUSTMENT...................................................................................90
SECTION 1608. OTHER ADJUSTMENTS...............................................................................90
SECTION 1609. ADJUSTMENTS FOR TAX PURPOSES....................................................................90
SECTION 1610. ADJUSTMENTS BY THE COMPANY......................................................................91
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C>
SECTION 1611. NOTICE OF ADJUSTMENT............................................................................91
SECTION 1612. NOTICE OF CERTAIN TRANSACTIONS..................................................................91
SECTION 1613. EFFECT OF RECLASSIFICATIONS, CONSOLIDATIONS, MERGERS OR SALES ON CONVERSION PRIVILEGE...........91
SECTION 1614. TRUSTEE'S DISCLAIMER............................................................................92
ARTICLE SEVENTEEN MEETINGS OF HOLDERS OF SECURITIES..............................................................93
SECTION 1701. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.......................................................93
SECTION 1702. CALL, NOTICE AND PLACE OF MEETINGS..............................................................93
SECTION 1703. PERSONS ENTITLED TO VOTE AT MEETINGS............................................................93
SECTION 1704. QUORUM; ACTION..................................................................................94
SECTION 1705. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.............................95
SECTION 1706. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.................................................96
</TABLE>
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE
ACT OF 1939 AND INDENTURE
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
- ----------- -----------------
<S> <C>
Section 310(a) (1)..........................................................................................607
(a) (2)..........................................................................................607
(b)......................................................................................608(d), 609
Section 311(a)..............................................................................................612
(b)..............................................................................................612
Section 312(c)..............................................................................................701
Section 313 .............................................................................................702
Section 314(a)..............................................................................................703
(a) (4).........................................................................................1007
(c) (1)..........................................................................................102
(c) (2)..........................................................................................102
(e)..............................................................................................102
Section 315(b)..............................................................................................601
Section 316(a) (last sentence)..............................................................................101
(a) (1) (A).................................................................................502, 512
(a) (1) (B)......................................................................................513
(b)..............................................................................................508
(c)...........................................................................................104(e)
Section 317(a) (1)..........................................................................................503
(1) (2)..........................................................................................504
(b).............................................................................................1003
Section 318(a)..............................................................................................107
</TABLE>
iv
<PAGE> 6
INDENTURE, dated as of ___________________________, between SCI
SYSTEMS, INC., a corporation duly organized and existing under the laws of the
State of Delaware (the "Company"), having its principal office at 2101 West
Clinton Avenue, Huntsville, Alabama 35805 and _________________,
a__________________, as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated debt
securities (herein called the "Securities"), to be issued in one or more series
as in this Indenture provided.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and words in the singular include words in the plural as
well as the singular and words in the plural include the singular as well as the
plural;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and "self-liquidating
paper", as used in TIA Section 311, shall have the meanings assigned to them in
the rules of the Commission adopted under the Trust Indenture Act;
<PAGE> 7
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and except as otherwise herein expressly provided; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Three, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Authenticating Agent" means any Person appointed by the Trustee to act
on behalf of the Trustee pursuant to Section 611 to authenticate Securities.
"Authorized Newspaper" means a newspaper, in the English language or in
an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in each place in connection with which the term is
used or in the financial community of each 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 Law" means Title 11, United States Bankruptcy Code of 1978,
as amended, or any similar United States federal or state or foreign law
relating to bankruptcy, insolvency, receivership, winding-up, liquidation,
reorganization or relief of debtors or any amendment to, succession to or change
in any such law.
"Bank" means the banks and other financial institutions that from time
to time are lenders under the Credit Agreement.
"Bearer Security" means any Security except a Registered Security.
"Board of Directors" means, with respect to any Person, either the
board of directors of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the secretary or an assistant secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Book-Entry Security" has the meaning specified in Section 304.
"Business Day" means, each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York
are authorized or obligated by law, regulation or executive order to close.
2
<PAGE> 8
"Capital Stock" means, with respect to any Person, any and all shares,
interests, partnership interests, participation rights in or other equivalents
(however designated) of such Person's equity (however designated) whether now
outstanding or issued after the date of this Indenture.
"Capitalized Lease Obligation" means, with respect to any Person, an
obligation incurred or assumed under or in connection with any capital lease of
real or personal property that, in accordance with GAAP, has been recorded as a
capitalized lease on the balance sheet of such Person.
"Cedel" means Cedel Bank, S.A., or its successor.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act or, if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Depositary" has the meaning specified in Section 305.
"Common Stock" means the Company's common stock, $0.10 par value per
share.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company (i) by its chairman, a vice-chairman, its
president or any vice president and (ii) by its treasurer, an assistant
treasurer, its secretary or an assistant secretary and delivered to the Trustee;
provided, however, that such written request or order may be signed by any two
of the officers or directors listed in clause (i) above in lieu of being signed
by one of such officers or directors listed in such clause (i) and one of the
officers listed in clause (ii) above.
"Consolidated Subsidiaries" means, at any date, any Subsidiary or other
entity, the accounts of which would be consolidated with those of the Company in
its consolidated financial statements if such statements were prepared as of
such date.
"Conversion Agent" means any Person (including the Company acting as
Conversion Agent) authorized by the Company to receive Securities which are
convertible into Common Stock pursuant to Section 301 and which are tendered for
conversion by the Holders thereof and to deliver shares of Common Stock which
such Holders are entitled to receive as a result of the conversion of such
Securities.
"Conversion Date" has the meaning specified in Section 1602.
"Conversion Price" has the meaning specified in Section 1601.
3
<PAGE> 9
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office on the date of execution of this Indenture is located
at ______________, New York, New York _____.
"Corporation" includes corporations, associations, partnerships,
limited liability companies, companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Covenant defeasance" has the meaning specified in Section 1403 hereof.
"Credit Facility" means the Amended and Restated Credit Agreement dated
as of August 3, 1995, as amended, among the Company, Citibank, N.A., as agent,
ABN AMRO Bank N.V., as co-agent, Bank of America, as co-agent, and the lenders
named therein, as the same may be amended, renewed, extended, refinanced,
substituted or replaced from time to time.
"Credit Facility Agent" means the then acting Agent and Co-Agents, if
any, as defined in and under the Credit Facility or any successor thereto.
"Currency" means any currency or currencies, composite currency or
currency unit or currency units, including, without limitation, the Euro, issued
by the government of one or more countries or by any recognized confederation or
association of such governments.
"Currency Conversion Date" has the meaning specified in Section
313(d).
"Currency Conversion Event" means the cessation of use of (i) a
Foreign Currency both by the government of the country which issued such
Currency and by a central bank or other public institution of or within the
international banking community for the settlement of transactions other than as
a result of the European Economic and Monetary Union and the adoption or phase
in of the Euro pursuant thereto, or (ii) any currency unit (or composite
currency) including the Euro for the purposes for which it was established.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar officer under any Bankruptcy Law.
"Daily Market Price" means the price of a share of Common Stock on the
relevant date, determined (a) on the basis of the then last reported sale price
regular way of the Common Stock as reported on The New York Stock Exchange (the
"NYSE"), or if the Common Stock is not then listed on the NYSE, as reported on
such national securities exchange upon which the Common Stock is listed, or (b)
if there is no such reported sale on the day in question, on the basis of the
average of the closing bid and asked quotations regular way as so reported, or
(c) if the Common Stock is not listed on the NYSE or any national securities
exchange, on the basis of the average of the high bid and low asked quotations
regular way on the day in question in the over-the-counter market as reported by
the National Association of Securities Dealers Automated Quotation System, or if
not so quoted, as reported by the National Quotation Bureau, Incorporated or a
similar organization.
4
<PAGE> 10
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 308 hereof.
"defeasance" has the meaning specified in Section 1402 hereof.
"Depository" has the meaning specified in Section 304.
"Designated Senior Indebtedness" means any Senior Indebtedness which,
at the time of determination, has an aggregate principal amount outstanding of,
or commitments to lend up to, at least $50,000,000, and is specifically
designated by the Company in the instrument evidencing or governing such Senior
Indebtedness as "Designated Senior Indebtedness" for the purposes of this
Indenture.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 313(g).
"Dollar Equivalent of the Foreign Currency" has the meaning specified
in Section 313(f).
"Election Date" has the meaning specified in Section 313(g).
"Euro" means the single currency for those member states of the
European Union that satisfy certain criteria set forth in the Treaty of Rome, as
amended by the Treaty on European Union.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Date" has the meaning specified in Section 305.
"Exchange Rate Agent" means, with respect to Securities of or within
any series, unless otherwise specified with respect to any Securities pursuant
to Section 301, a New York Clearing House bank, designated pursuant to Section
301 [OR SECTION 313].
"Exchange Rate Officers' Certificate" means a tested telex or a
certificate setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a
5
<PAGE> 11
Security having the lowest denomination principal amount determined in
accordance with Section 302 in the relevant Currency), payable with respect to a
Security of any series on the basis of such Market Exchange Rate, sent (in the
case of a telex) or signed (in the case of a certificate) by the Chairman, Chief
Executive Officer, a Vice Chairman, the President, a Vice President or the
Treasurer of the Company.
"Foreign Currency" means any Currency other than Currency of the United
States.
"Generally Accepted Accounting Principles" or "GAAP " means Generally
Accepted Accounting Principles in the United States, as in effect from time to
time, applied on a basis consistent (except for changes concurred in by the
Company's independent public accountants) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries.
"Global Securities" means one or more Securities evidencing all or part
of the Securities to be issued as Book-Entry Securities, issued to the
Depository in accordance with Section 301 and bearing the legend prescribed in
Section 204.
"Government Obligations" means, unless otherwise specified with respect
to any series of Securities pursuant to Section 301, securities which are (1)
direct obligations of the United States of America or of the other government or
governments in the confederation which issued the Foreign Currency in which such
series of Securities shall be payable, in each case where the payment or
payments thereunder are supported by the full faith and credit of such
government or governments or (2) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America or such other government or governments, in each case where the timely
payment or payments thereunder are unconditionally guaranteed as a full faith
and credit obligation by the United States of America or such other government
or governments. In either case, such obligations may not be callable or
redeemable at the option of the issuer or issuers thereof. Such obligations may
also include a depository receipt issued by a bank or trust company as custodian
with respect to any such Government Obligation or a specific payment of interest
on or principal of or other amount with respect to any such Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or principal of or
other amount with respect to the Government Obligation evidenced by such
depository receipt.
"guarantee" means, as applied to any obligation, (a) a guarantee (other
than by endorsement of negotiable instruments for collection in the ordinary
course of business), direct or indirect, in any manner, of any part or all of
such obligation and (b) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limitation, the payment of
amounts drawn down under letters of credit.
6
<PAGE> 12
"Hedging Obligations" means the obligations of any Person under (a)
interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements and (b) other agreements or arrangements designed to protect
such Person against fluctuations in interest rates or the value of foreign
currencies.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case of
a Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"incorporated provision" has the meaning specified in Section 107.
"Indebtedness", with respect to any Person means (without
duplication): (a) any liability of such Person (1) for borrowed money, or under
any reimbursement obligation relating to a letter of credit, or (2) evidenced by
a bond, note, debenture or similar instrument, or (3) for payment obligations
arising under any conditional sale or other title retention arrangement
(including a purchase money obligation) given in connection with the acquisition
of any businesses, properties or assets of any kind, or (4) under Capitalized
Lease Obligations, or (5) under Hedging Obligations; (b) any liability of others
of a type described in the preceding clause (a) to the extent that such Person
has guaranteed or is otherwise legally obligated in respect thereof; and (c) any
amendment, supplement, modification, deferral, renewal, extension or refunding
of any liability of the types referred to in clauses (a) and (b) above.
"Indebtedness" shall not be construed to include (x) trade payables or credit on
open account to trade creditors incurred in the ordinary course of business or
(y) obligations or liabilities incurred in connection with the sale, transfer or
other disposition of property in connection with the securitization or other
asset-based financing thereof; provided however that any such sale, transfer or
other disposition shall be for valid consideration and shall not be to prefer
directly or indirectly any holder of any other obligation or Indebtedness of
such Person as to any such other obligation or Indebtedness that was already
outstanding and did not previously benefit from a Lien.
"Indenture" means this instrument as originally executed (including all
exhibits and schedules hereto) and as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof, and shall include the terms of particular
series of Securities established as contemplated by Section 301; provided,
however, that, if at any time more than one Person is acting as Trustee under
this instrument, "Indenture" shall mean, with respect to any one or more series
of Securities for which such Person is Trustee, 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
for which such Person is Trustee established as contemplated by Section 301,
exclusive, however, of any provisions or terms which relate solely to other
series of Securities for which such Person is not Trustee, regardless of when
such terms or provisions were adopted, and exclusive of any provisions or terms
adopted by means of one or more indentures supplemental hereto executed and
delivered after such Person had become such Trustee but to which such Person, as
such Trustee, was not a party.
7
<PAGE> 13
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity at the rate prescribed in such Original Issue Discount
Security.
"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of an installment of interest on such
Securities.
"Lease" means any capital lease, operating lease, equipment lease, real
property lease or other lease.
"Lien" means, with respect to any asset, any pledge, mortgage, charge,
encumbrance or security interest in respect of such asset; provided that any
transaction (including, without limitation, any sale of accounts receivable)
which is treated as a sale of assets under GAAP shall be so treated and any
asset which is so sold shall not be deemed subject to a Lien. A contractual
grant of a right of set-off does not create a Lien in the absence of an
agreement to maintain a balance against which such right may be exercised.
"mandatory sinking fund payment" shall have the meaning specified in
Section 1201.
"Market Exchange Rate" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, (i) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 301 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon (New York City time) buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot rate at
noon local time in the relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion is
being made from major banks located in either New York City, London or any other
principal market for Dollars or such purchased Foreign Currency, in each case
determined by the Exchange Rate Agent. Unless otherwise specified with respect
to any Securities pursuant to Section 301, in the event of the unavailability of
any of the exchange rates provided for in the foregoing clauses (i), (ii) and
(iii), the Exchange Rate Agent shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York as
of the most recent available date, or quotations from one or more major banks in
New York City, London or another principal market for the Currency in question,
or such other quotations as the Exchange Rate Agent shall deem appropriate.
Unless otherwise specified by the Exchange Rate Agent, if there is more than one
market for dealing in any Currency by reason of foreign exchange regulations or
otherwise, the market to be used in respect of such Currency shall be
8
<PAGE> 14
that upon which a non-resident issuer of securities designated in such Currency
would purchase such Currency in order to make payments in respect of such
securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided whether at the Stated Maturity, by declaration of acceleration,
notice of redemption, notice of option to elect repayment or otherwise.
"Notice of Default" shall have the meaning specified in Section 601.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two officers of the Company, one of whom must be principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company that meets the requirements set forth in
Section 102.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee. Each such
opinion shall include the statements provided for in TIA Section 314(e) to the
extent applicable.
"Option to Elect Repayment" shall have the meaning specified in Section
1303.
"optional sinking fund payment" shall have the meaning specified in
Section 1201.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding" when used with respect to Securities means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment,
purchase, redemption or repayment at the option of the Holder 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 and any coupons appertaining thereto; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen;
9
<PAGE> 15
(iv) Securities paid pursuant to Section 307 or Securities
in exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; and
(v) Securities converted into Common Stock in accordance with
Article Sixteen;
provided, however, that, in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
direction, consent or waiver hereunder or are present at a meeting of Holders
for quorum purposes, and for the purpose of making the calculations required by
TIA Section 313, (i) the principal amount of an Original Issue Discount Security
that may be counted in making such determination or calculation and that shall
be deemed to be Outstanding for such purpose shall be equal to the amount of
principal thereof that would be (or shall have been declared to be) due and
payable, at the time of such determination, upon a declaration of acceleration
of the maturity thereof pursuant to Section 502, (ii) the principal amount of
any Indexed Security that may be counted in making such determination or
calculation and that shall be deemed outstanding for such purpose shall be equal
to the principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Security pursuant to Section 301,
and (iii) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such calculation or in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee actually knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor.
"Paying Agent" means any Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal of (or premium, if any) or
interest, if any, on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof or any other entity.
"Place of Payment" means, when used with respect to the Securities of
or within any series, the place or places where the principal of (and premium,
if any) and interest, if any, on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 307 in
10
<PAGE> 16
exchange for a mutilated Security or in lieu of a destroyed, lost or stolen
Security or a Security to which a mutilated, destroyed, lost or stolen coupon
appertains shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security or the Security to which the mutilated,
destroyed, lost or stolen coupon appertains, as the case may be.
"Purchase Date" means, when used with respect to any Security to be
purchased at the option of the Holder, the date fixed for such purchase pursuant
to this Indenture.
"Purchase Price" means, when used with respect to any Security to be
purchased at the option of the Holder, the price at which it is to be purchased
pursuant to this Indenture.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security registered in the Security
Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means any
vice-president, any assistant secretary, any assistant treasurer, any trust
officer or assistant trust officer, the controller and any assistant controller
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above-designated officers or assigned by the
Trustee to administer corporate trust matters at its Corporate Trust Office and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Subsidiary" means, at any time, each and every Subsidiary
which is a "significant subsidiary" as defined in Rule 1-02(w) of Regulation S-X
under the Securities Act and the Exchange Act.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities 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
the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this Indenture and shall more particularly mean
Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
"Securities Act" means the Securities Act of 1933, as amended.
11
<PAGE> 17
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 306.
"Senior Indebtedness" means the principal of, interest on and other
amounts due on Indebtedness of the Company, whether outstanding on the date of
this Indenture or thereafter created, incurred, assumed or guaranteed by the
Company; unless, in the instrument creating or evidencing or pursuant to which
Indebtedness is outstanding, it is expressly provided that such Indebtedness is
not senior in right of payment to the Securities. Senior Indebtedness includes,
with respect to the obligations described above, interest accruing pursuant to
the terms of such Senior Indebtedness on or after the filing of a petition in
bankruptcy or for reorganization relating to the Company, whether or not
post-filing interest is allowed in such proceeding, at the rate specified in the
instrument governing the relevant obligation. Notwithstanding anything to the
contrary in the foregoing, Senior Indebtedness shall not include: (a)
Indebtedness of or amounts owed by the Company for compensation to employees, or
for goods, services or materials purchased in the ordinary course of business;
(b) Indebtedness of the Company to a Subsidiary of the Company except to the
extent any such Indebtedness is pledged to or otherwise subject to a prior claim
by the Banks under the Credit Facility; or (c) any liability for federal, state,
local or other taxes owed or owing by the Company.
"Special Record Date" means a date fixed by the Trustee for the payment
of any Defaulted Interest pursuant to Section 308.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 309.
"Subsidiary" means any Person a majority of the equity ownership or
Voting Stock of which is at the time owned, directly or indirectly, by the
Company and/or one or more other Subsidiaries of the Company.
"Surviving Entity" shall have the meaning set forth in Section 801
hereof.
"Trading Day" shall mean (A) if the applicable security is listed or
admitted for trading on the New York Stock Exchange or another national
securities exchange, a day on which the New York Stock Exchange or such other
national securities exchange is open for business, (B) if the applicable
security is quoted on The Nasdaq National Market, a day on which trades may be
made thereon or (C) if the applicable security is not so listed, admitted for
trading or quoted, any day other than a Saturday or Sunday or a day on which
banking institutions in the State of New York are authorized or obligated by law
or execute order to close.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended, and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
12
<PAGE> 18
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture 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;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, 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 person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States, an estate the
income of which is subject to United States Federal income taxation regardless
of its source, or any trust whose administration is subject to the primary
supervision of a United States court and which has one or more United States
fiduciaries who have the authority to control all substantial decisions of the
trust.
"Unrestricted Subsidiary" means any Subsidiary which is not a
Restricted Subsidiary.
"Valuation Date" has the meaning specified in Section 313(c).
"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".
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes has, or might have, voting power by reason of the
happening of any contingency).
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent redetermination
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) 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
13
<PAGE> 19
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 covenant
or condition provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such covenant or condition has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
14
<PAGE> 20
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of the Outstanding Securities of all series or one or more series, as
the case may be, may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable 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 of such series may, alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the provisions
of Article Fifteen, 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 or so voting at any such meeting.
Proof of execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to TIA Section 315) 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 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) 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, banker 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 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. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner that the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the
15
<PAGE> 21
determination of such Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. Notwithstanding TIA Section 316(c), any such
record date shall be the record date specified in or pursuant to such Board
Resolution, which shall be a date not more than 30 days prior to the first
solicitation of Holders generally in connection therewith and no later than the
date such solicitation is completed. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Securities then Outstanding have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other Act,
and for that purpose the Securities then Outstanding shall be computed as of
such record date, provided that no such request, demand, authorization,
direction, notice, consent, waiver or other Act by the Holders on such record
date shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holder of any Security shall bind every
future Holder of the same Security or the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof,
in respect of anything done, suffered or omitted to be done by the Trustee, any
Paying Agent or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or the Company shall be sufficient for
every purpose hereunder if made, given, furnished or delivered, in writing, to
or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Administration; or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or delivered, in writing, or mailed,
first-class postage prepaid, or delivered by recognized overnight courier, to
the Company addressed to it at the address of its principal office specified in
the first paragraph of this Indenture, or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such event,
at his address as it appears in the Security Register, not later than the latest
date,
16
<PAGE> 22
and not earlier than the earliest date, prescribed for the giving of such
notice. 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 shall affect the sufficiency of such notice
with respect to other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided. Any notice mailed to a
Holder in the aforesaid manner shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such
notice.
In case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impractical to mail
notice of any event to Holders of Registered Securities when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be sufficient giving of such notice for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given to Holders of Bearer Securities if published in an
Authorized Newspaper in The City of New York and in such other city or cities as
may be specified in such Securities on a Business Day at least twice, the first
such publication to be not earlier than the earliest date, and not later than
the latest date, prescribed for the giving of such notice. Any such notice shall
be deemed to have been given on the date of the first such publication.
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 given
with the approval of the Trustee 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 such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
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.
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.
17
<PAGE> 23
SECTION 107. CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST
INDENTURE ACT.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by TIA Sections 310 to 318,
inclusive, or conflicts with any provision (an "incorporated provision")
required by or deemed to be included in this Indenture by operation of such TIA
Sections, such imposed duties or incorporated provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or excluded, as the case may
be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in any Security or coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar, any holders of
Senior Indebtedness and their successors hereunder and the Holders of Securities
or coupons, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES AND COUPONS SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THIS INDENTURE
SHALL BE SUBJECT TO, AND GOVERNED BY, THE PROVISIONS OF THE TRUST INDENTURE ACT
OF 1939, AS AMENDED, THAT ARE REQUIRED TO BE PART OF AND TO GOVERN INDENTURES
QUALIFIED THEREUNDER.
18
<PAGE> 24
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, sinking
fund payment date or Stated Maturity or Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of any Security or coupon other than a provision in the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section), payment of principal (or premium, if any) or
interest, if any, need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or Redemption
Date or sinking fund payment date, or at the Stated Maturity or Maturity;
provided that no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be.
SECTION 114. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES,
STOCKHOLDERS OR INCORPORATES.
No director, officer, employee, incorporator or stockholders, as such,
of the Company shall have any liability for any obligations of the Company under
the Securities or this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creations. Each Holder by accepting any of
the Securities waives and releases all such liability. Such waiver and release
are part of the consideration for the issuance of the Securities of any series.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in substantially
the forms as shall be established by or pursuant to a Board Resolution or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
or coupons, as evidenced by their execution of the Securities or coupons. If the
forms of Securities or coupons of any series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities or coupons. Any portion of the text of any Security may be set forth
on the reverse thereof, with an appropriate reference thereto on the face of the
Security.
19
<PAGE> 25
Unless otherwise specified as contemplated by Section 301, Securities
in bearer form shall have interest coupons attached.
The Trustee's certificate of authentication on all Securities shall be
in substantially the form set forth in this Article.
The definitive Securities and coupons shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing such Securities, as
evidenced by their execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 612, the Trustee's certificate of authentication
shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: --------------------------------
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
____________, as Trustee
By:
----------------------------------
Authorized Signatory
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM.
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, any such 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 of such series from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities of such series represented
thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and 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 303 or Section 305. Subject
to the provisions of Section 303 and, if applicable, Section 305, the Trustee
shall deliver and redeliver any Security in permanent global form in the manner
and upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or Section
305 has been, or simultaneously is, delivered, any instructions by the Company
with respect to
20
<PAGE> 26
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 308, unless otherwise
specified as contemplated by Section 301, payment of principal of (and premium,
if any) and interest, if any, on any Security in permanent global form shall be
made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 310 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent Global Security (i) in the
case of a permanent Global Security in registered form, the Holder of such
permanent Global Security in registered form, or (ii) in the case of a permanent
Global Security in bearer form, Euroclear or Cedel.
SECTION 204. FORM OF LEGEND FOR BOOK-ENTRY SECURITIES.
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITORY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK 10041) TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND SUCH
CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN THE NAME OF
CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
21
<PAGE> 27
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, 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, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (17) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series and set forth in such Securities of the series
when issued from time to time):
(1) the title and ranking of the Securities of the series (which
shall distinguish the Securities of the series from all other series of
Securities):
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 305, 306, 307, 906, 1107 or 1305):
(3) the Person to whom any interest on the Securities of any
series is payable if other than the Person in whose name the Securities of such
series are registered on the Regular Record Date;
(4) the date or dates, or the method by which such date or dates
will be determined on which the principal of the Securities of the series is
payable;
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, or the
method by which such date or dates shall be determined, the Interest Payment
Dates on which such interest shall be payable and the Regular Record Date, if
any, for the interest payable on any Registered Security on any Interest Payment
Date, or the method by which such date or dates shall be determined, and the
basis upon which interest shall be calculated if other than on the basis of a
360-day year of twelve 30-day months;
(6) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of (and premium,
if any) and interest, if any, on Securities of the series shall be payable,
where any Registered Securities of the series may be surrendered for
registration of transfer, where Securities of the series may be surrendered for
22
<PAGE> 28
exchange, where Securities of the series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable and, if different
than the location specified in Section 106, the place or places where notices or
demands to or upon the Company in respect of the Securities of the series and
this Indenture may be served;
(7) the period or periods within which, the events upon the
occurrence of which, the price or prices at which, and other terms and
conditions upon which Securities of the series may be redeemed or purchased, in
whole or in part, at the option of the Company, if the Company is to have that
option;
(8) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof, and the period or periods within
which, the price or prices at which, and other terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any Securities of
the series shall be issuable;
(10) whether the amount of payments of principal of (or premium, if
any) or interest, if any, on the Securities of the series may be determined with
reference to an index, formula or other method (which index, formula or method
may be based, without limitation, on one or more Currencies, commodities, equity
indices or other indices), and the manner in which such amounts shall be
determined;
(11) whether the principal of (or premium, if any) or interest, if
any, on the Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a Currency other than Dollars, the period or
periods within which (including the Election Date), and the terms and conditions
upon which, such election may be made, and the time and manner of determining
the exchange rate between the Currency in which such Securities are denominated
or stated to be payable and the Currency in which such Securities are to be so
payable, in each case in accordance with, in addition to or in lieu of any of
the provisions of Section 313;
(12) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
the method by which such portion shall be determined;
(13) if the principal amount of the Securities of the series
payable at the Maturity thereof is not determinable as of any date prior to such
Maturity, the amount which shall be deemed to be the Outstanding principal
amount of the Securities of such series;
(14) any change in the applicability of Sections 1402 and/or 1403
to the Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen that shall
be applicable to the Securities of the series;
23
<PAGE> 29
(15) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities,
whether any Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be issuable in
permanent global form with or without coupons and, if so, whether beneficial
owners of interests in any such permanent Global Security may exchange such
interests for Securities of such series and of like tenor of any authorized form
and denomination and the circumstances under which any such exchanges may occur,
if other than in the manner provided in Section 306, whether Registered
Securities of the series may be exchanged for Bearer Securities of the series
(if permitted by applicable laws and regulations), whether Bearer Securities of
the series may be exchanged for Registered Securities of such series, and the
circumstances under which and the place or places where any such exchanges may
be made and if Securities of the series are to be issuable in global form, the
identity of any initial depository therefor;
(16) any change in the applicability of the Events of Default with
respect to Securities of the series, whether or not such Events of Default are
consistent with the Events of Default set forth herein;
(17) any deletions from, modifications of or additions to the
covenants of the Company with respect to Securities of the series, whether or
not such covenants are consistent with the covenants set forth herein;
(18) if the Securities of the series are to be secured;
(19) whether the provisions of Article Sixteen are applicable to
the Securities of the series and any provisions and modifications of, or in
addition to or in lieu of any of the provisions of Article Sixteen that shall be
applicable to the Securities of the series;
(20) the specific terms of the depository arrangement with respect
to any portion of a series of Securities to be represented by a Global Security
pursuant to Section 304; and
(21) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series (which terms
shall not be inconsistent with the requirements of the Trust Indenture Act or
the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 303) and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto. Not all Securities of any one series need be issued at the same time,
and, unless otherwise provided, a series may be reopened for issuances of
additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
24
<PAGE> 30
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 301. With respect to Securities
of any series denominated in Dollars, in the absence of any such provisions, the
Securities of such series, other than Securities issued in global form (which
may be of any denomination), shall be issuable in denominations of $1,000 and
any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities and any coupons appertaining thereto shall be executed
on behalf of the Company by any one of the following: its Chairman, Chief
Executive Officer, its President or one of its Vice Presidents, and attested by
one of its Vice Presidents or its Secretary or one of its Assistant Secretaries.
The signature of any of these officers on the Securities or coupons may be
manual or facsimile.
Securities or 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 or coupons.
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 coupon appertaining thereto, 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 in accordance with such Company
Order shall authenticate and make available for delivery such Securities;
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, unless otherwise specified with respect to
any series of Securities pursuant to Section 301, a Bearer Security may be
delivered in connection with its original issuance only if the Person entitled
to receive such Bearer Security shall have furnished a certificate in the form
set forth in EXHIBIT A-1 to this Indenture, dated no earlier than 15 days prior
to the earlier of the date on which such Bearer Security is delivered and the
date on which any temporary Security first becomes exchangeable for such Bearer
Security in accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a permanent global Bearer
Security, then, for purposes of this Section and Section 305, the notation of a
beneficial owner's interest therein upon original issuance of such Security or
upon exchange of a portion of a temporary Global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent Global Security. Except as permitted by Section 307,
the Trustee shall not authenticate and make available for delivery any Bearer
Security unless all appurtenant coupons for interest then matured have been
detached and canceled. If not all the Securities of any series are to be issued
at one time and if the Board Resolution or supplemental indenture establishing
such series shall so permit, such Company Order may set forth procedures
acceptable to the Trustee for the issuance of such Securities and determining
25
<PAGE> 31
terms of particular Securities of such series such as interest rate, stated
maturity, date of issuance and date from which interest shall accrue.
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 TIA sections 315(a)
through 315(d)) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(a) that the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture:
(b) that the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
(c) that such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and delivered by
the Company to the Trustee for authentication in accordance with this Indenture,
authenticated and made available for delivery by the Trustee in accordance with
this Indenture and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute the legal,
valid and binding obligations of the Company, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency, reorganization and
other similar laws of general applicability relating to or affecting the
enforcement of creditors' rights, to general equitable principles and to such
other qualifications as such counsel shall conclude do not materially affect the
rights of Holders of such Securities and any coupons;
(d) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities, any coupons and of the supplemental
indentures, if any, have been complied with and that authentication and delivery
of such Securities and any coupons and the execution and delivery of the
supplemental indenture, if any, by the Trustee will not violate the terms of the
Indenture;
(e) that the Company has the corporate power to issue such Securities
and any coupons, and has duly taken all necessary corporate action with respect
to such issuance; and
(f) that the issuance of such Securities and any coupons will not
contravene the articles of incorporation or by-laws of the Company or result in
any violation of any of the terms or provisions of any law or regulation or of
any indenture, mortgage or other agreement known to such Counsel by which the
Company is bound.
Notwithstanding the provisions of Section 301 and of the preceding two
paragraphs, if not all the Securities of any series are to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to the preceding two paragraphs prior to or at the
time of issuance of each Security, but such documents shall be delivered prior
to or at the time of issuance of the first Security of such series.
26
<PAGE> 32
The Trustee shall not be required to authenticate and make available
for delivery any such Securities if the issue of such Securities pursuant to
this Indenture will affect the Trustee's own rights, duties or immunities under
the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 301.
No Security or coupon 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 duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as provided in
Section 311 together with a written statement (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. BOOK-ENTRY SECURITIES.
(a) The Securities of a series may be issuable in whole or in part
in the form of one or more Global Securities ("Book-Entry Securities") deposited
with, or on behalf of, a Depository (the "Depository"). In the case of
Book-Entry Securities, one or more Global Securities will be issued in a
denomination or aggregate denomination equal to the portion of the aggregate
principal amount of Outstanding Securities of the series to be represented by
such Global Security or Global Securities. Unless otherwise provided as
contemplated by Section 301, the additional provisions set forth in this Section
304 shall apply to Book-Entry Securities.
(b) Book-Entry Securities will be deposited with, or on behalf of,
the Depository, and registered in the name of the Depository's nominee, for
credit to the respective accounts of institutions that have accounts with the
Depository or its nominee ("Participants"); provided that Book-Entry Securities
purchased by persons outside the United States may be credited to or through
accounts maintained at the Depository by or on behalf of Euroclear or Cedel. The
accounts to be credited will be designated by the underwriters or agents of such
Securities or, if such Securities are offered and sold directly by the Company,
by the Company. Ownership of beneficial interests in Book-Entry Securities will
be limited to Persons that may hold interests through Participants and will be
shown on records maintained by the Depository or its nominee for such Book-Entry
Security. Participants shall have no rights under this Indenture or any
indenture supplemental hereto with respect to any Book-Entry Security held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Book-Entry Security, and the Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of the
Book-Entry Security for all purposes whatsoever.
27
<PAGE> 33
Notwithstanding the foregoing, nothing in this Indenture or any such indenture
supplemental shall prevent the Company, the Trustee or any agent of the Company
or the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and its Participants, the operation of customary practices governing the
exercise of the rights of a Holder of any Security.
(c) Transfers of Book-Entry Securities shall be limited to
transfers in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in Book-Entry Securities may
be transferred or exchanged for Bearer Securities only if (i) the Depository
advises the Trustee in writing that it is no longer willing or able to discharge
properly its responsibilities with respect to such Book-Entry Security and it is
unable to locate a qualified successor, (ii) the Company, at its option, elects
to terminate the book-entry system by executing and delivering to the Trustee
and the Depository a notice to such effect, or (iii) there shall have occurred
and be continuing a Default or Event of Default with respect to the Securities
represented by such Book-Entry Security.
(d) In connection with any transfer or exchange of a portion of
the beneficial interest in any Book-Entry Security to beneficial owners pursuant
to paragraph (c) above, the Security Registrar shall (if one or more Bearer
Securities are to be issued) reflect on its books and records the date and a
decrease in the principal amount of the Book-Entry Security in an amount equal
to the principal amount of the beneficial interest in the Book-Entry Security to
be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Bearer Securities of like tenor and
principal amount of authorized denominations.
(e) In connection with the transfer of Book-Entry Securities as an
entirety to beneficial owners pursuant to paragraph (c) above, the Book-Entry
Securities shall be deemed to be surrendered to the Trustee for cancellation and
the Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depository in exchange for its
beneficial interest in the Book-Entry Securities, an equal aggregate principal
amount of Bearer Securities of like tenor of authorized denominations.
(f) The Holder of any Book-Entry Security may grant proxies and
otherwise authorize any person, including Participants and Persons that may hold
interests through Participants, to take any action which a Holder is entitled to
take under the applicable Indenture or the Securities.
SECTION 305. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are typewritten, printed, lithographed,
engraved or otherwise produced by any combination of these methods, in any
authorized denomination, 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
28
<PAGE> 34
evidenced by their execution of such Securities. Such temporary Securities may
be in global form.
Except in the case of temporary Securities in global form that are not
issued as Book-Entry Securities as provided in Section 304 (which shall be
exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured coupons appertaining thereto), the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations; provided, however, that no Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a Bearer Security shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in Section 303. 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.
If temporary Securities of any series are issued in global form (other
than Securities issued as Book-Entry Securities as provided in Section 304), any
such temporary Global Security shall, unless otherwise provided therein, be
delivered to the London office of a depositary or common depositary (the "Common
Depositary"), for the benefit of Euroclear and Cedel, for credit to the
respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary Global
Security that is not issued as a Book-Entry Security as provided in Section 304
(the "Exchange Date"), the Company shall deliver to the Trustee definitive
Securities, in aggregate principal amount equal to the principal amount of such
temporary Global Security, executed by the Company. On or after the Exchange
Date such temporary Global Security shall be surrendered by the Common
Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary Global 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 Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary Global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
however, that, unless otherwise specified in such temporary Global Security,
upon such presentation by the Common Depositary, such temporary Global Security
is accompanied by a certificate dated the Exchange
29
<PAGE> 35
Date or a subsequent date and signed by Euroclear as to the portion of such
temporary Global Security held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and signed by Cedel as
to the portion of such temporary Global Security held for its account then to be
exchanged, each in the form set forth in EXHIBIT A-2 to this Indenture (or in
such other form as may be established pursuant to Section 301); and provided
further that Bearer Securities shall be delivered in exchange for a portion of a
temporary Global Security only in compliance with the requirements of Section
303.
Unless otherwise specified in such temporary Global Security that is
not issued as a Book-Entry Security as provided in Section 304, the interest of
a beneficial owner of Securities of a series in a temporary Global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euroclear or
Cedel, as the case may be, to request such exchange on his behalf and delivers
to Euroclear or Cedel, as the case may be, a certificate in the form set forth
in EXHIBIT A-1 to this Indenture (or in such other form as may be established
pursuant to Section 301), dated no earlier than 15 days prior to the Exchange
Date, copies of which certificate shall be available from the offices of
Euroclear and Cedel, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in such
temporary Global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary Global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euroclear or Cedel.
Bearer Securities in bearer form to be delivered in exchange for any portion of
a temporary Global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series, including temporary Global Securities (whether or not
issued as Book-Entry Securities as provided in Section 304), shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and delivered
hereunder, except that, unless otherwise specified as contemplated by Section
301, interest payable on a temporary Global Security (other than Securities
issued as Book-Entry Securities as provided in Section 304) on an Interest
Payment Date for Securities of such series occurring prior to the applicable
Exchange Date shall be payable to Euroclear and Cedel on such Interest Payment
Date upon delivery by Euroclear and Cedel to the Trustee of a certificate or
certificates in the form set forth in EXHIBIT A-2 to this Indenture (or in such
other form as may be established pursuant to Section 301), for credit without
further interest thereon on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial owners of such
temporary Global Security on such Interest Payment Date and who have each
delivered to Euroclear or Cedel, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth in EXHIBIT A-1 to this Indenture (or in such
other form as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section and of the third paragraph of Section 303 of this
Indenture and the interests of the Persons who are the beneficial owners of the
temporary Global Security with respect to which such certification was made will
be exchanged for definitive Securities of the same series and of like tenor on
the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this
30
<PAGE> 36
paragraph, no payments of principal (or premium, if any) or interest, if any,
owing with respect to a beneficial interest in a temporary Global Security will
be made unless and until such interest in such temporary Global Security shall
have been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and Cedel and not paid as herein provided shall be
returned to the Trustee immediately prior to the expiration of two years after
such Interest Payment Date in order to be repaid to the Company in accordance
with Section 1003.
SECTION 306. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register for each series of Securities (the registers maintained in
such office of the Trustee and in any other office or agency designated pursuant
to Section 1002 being herein sometimes referred to as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Registered Securities and of
transfers of Registered Securities. The Trustee is hereby initially appointed
"Security Registrar" for the purpose of registering Registered Securities and
transfers of Registered Securities as herein provided.
Except as otherwise described in this Article Three, upon surrender for
registration of transfer of any Registered Security of any series at the office
or agency in a Place of Payment for that series, the Company shall execute, and
the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of the same
series, in each case, of any authorized denominations and of a like aggregate
principal amount.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Registered Securities to be exchanged at such office or agency. Whenever any
Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and make available for delivery, the
Registered Securities which the Holder making the exchange is entitled to
receive. Unless otherwise specified with respect to any series of Securities as
contemplated by Section 301 or Section 304, Bearer Securities may not be issued
in exchange for Registered Securities.
If (but only if) expressly permitted in or pursuant to the applicable
Board Resolution and (subject to Section 303) set forth in the applicable
Officers' Certificate, or in any indenture supplemental hereto, delivered as
contemplated by Section 301, at the option of the Holder, Bearer Securities of
any series may be exchanged for Registered Securities of the same series of any
authorized denomination 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, any such
permitted 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 is furnished to
them such security or
31
<PAGE> 37
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 such
payment; provided, however, that, except as otherwise provided in Section 1002,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in a permitted 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 proposed 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, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of 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.
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, and the Trustee
shall cancel the Bearer Securities so transferred. In the case of an exchange of
Bearer Securities for an interest in a Book-Entry Security, the Security
Registrar shall reflect on the Register the date and an increase in the
principal amount of the Bearer Securities to be transferred, and the Trustee
shall cancel the Bearer Securities so transferred.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent Global Security (other than
Securities issued as Book-Entry Securities as provided in Section 304) shall be
exchangeable only as provided in this paragraph. If any beneficial owner of an
interest in a permanent Global Security is entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301
and provided that any applicable notice provided in the permanent Global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged, the
Company shall deliver to the Trustee definitive Securities in aggregate
principal amount equal to the principal amount of such beneficial owner's
interest in such permanent Global Security, executed by the Company. On or after
the earliest date on which such interests may be so exchanged, such permanent
Global Security shall be surrendered by the Common Depositary or such other
depositary as shall be specified in the Company Order with respect thereto to
the Trustee, as the Company's agent for such purpose, to be exchanged, in whole
or from time to time in part, for definitive Securities without charge, and the
Trustee shall authenticate and deliver, in exchange for each portion of such
permanent Global 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 permanent Global Security to be exchanged which, unless the
Securities of the series are not issuable both as Bearer Securities and as
Registered Securities, as specified as contemplated by Section 301, shall be in
the form of
32
<PAGE> 38
Bearer Securities or Registered Securities, or any combination thereof, as shall
be specified by the beneficial owner thereof; provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15 days
before any selection of Securities to be redeemed and ending on the relevant
Redemption Date if the Security for which exchange is requested may be among
those selected for redemption; and provided further that no Bearer Security
delivered in exchange for a portion of a permanent Global Security shall be
mailed or otherwise delivered to any location in the United States. If a
Registered Security is issued in exchange for any portion of a permanent Global
Security after the close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent Global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to pay all documentary, stamp, similar issue or transfer taxes or other
governmental charges that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
305, 906, 1107 or 1305 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the selection for redemption of Securities
of that series under Section 1103 or 1203 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 and (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 of or
exchange any Registered Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part, or (iii)
to exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor; provided that such Registered Security shall be
33
<PAGE> 39
simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for repayment at
the option of the Holder, except the portion, if any, of such Security not to be
so repaid.
SECTION 307. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee together with, in proper cases,
such security or indemnity as may be required by the Company or the Trustee to
save each of them and any agent of either of them harmless, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to the surrendered Security, or, in case
any such mutilated Security or coupon has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new Security,
with coupons corresponding to the coupons, if any, appertaining to the
surrendered Security, pay such Security or coupon.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon Company
Order the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security for which a destroyed,
lost or stolen coupon appertains (with all appurtenant coupons not destroyed,
lost or stolen), a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to such destroyed,
lost or stolen Security or to the Security to which such destroyed, lost or
stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such mutilated, destroyed, lost or stolen Security or to the
Security to which such mutilated, destroyed, lost or stolen coupon appertains,
pay such Security or coupon; provided, however, that payment of principal of
(and premium, if any) and interest, if any, on Bearer Securities shall, except
as otherwise provided in Section 1002, be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 301, any interest on Bearer Securities shall be payable
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 pay all documentary, stamp or
similar issue or transfer taxes or other governmental charges that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
34
<PAGE> 40
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen
Security or in exchange for a Security to which a mutilated, destroyed, lost or
stolen coupon appertains, 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 that series and their coupons, if any, duly issued
hereunder.
The provisions of this Section 307 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 308. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest, if any, on any Registered Security which
is payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name such Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose pursuant to Section 1002: provided, however, that each
installment of interest, if any, on any Registered Security may at the Company's
option be paid by (i) mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to Section 310, to the
address of such Person as it appears on the Security Register or (ii) transfer
to an account located in the United States maintained by the payee.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, in the case of any Security which is converted
in accordance with Article Sixteen after any Regular Record Date and on or prior
to the next succeeding Interest Payment Date (other than any Security whose
Maturity is prior to such Interest Payment Date), interest whose Stated Maturity
is on such Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion, and such interest (whether or not punctually
paid or duly provided for) shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on such Regular Record Date. Except as otherwise expressly provided in
the immediately preceding sentence or in Section 1602, in the case of any
Security which is converted, interest whose stated Maturity is after the date of
conversion of such Security shall not be payable.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest, if any, may be made, in
the case of a Bearer Security, by transfer to an account located outside the
United States maintained by the payee.
Unless otherwise provided as contemplated by Section 301, every
permanent Global Security (other than Book-Entry Securities issued as provided
in Section 304) will provide that interest, if any, payable on any Interest
Payment Date will be paid to each of Euroclear and Cedel with respect to that
portion of such permanent Global Security held for its account by the
35
<PAGE> 41
Common Depositary, for the purpose of permitting each of Euroclear and Cedel to
credit the interest, if any, received by it in respect of such permanent Global
Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
shall forthwith cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such defaulted interest and, if
applicable, interest on such defaulted interest (to the extent lawful) at the
rate specified in the Securities of such series (such defaulted interest and, if
applicable, interest thereon herein collectively called "Defaulted Interest")
may be paid by the Company, at its election in each case, as provided in
Subsection (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Registered Security of such series and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount of
money in the Currency in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 313(b), 313(d) and 313(e))
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
on or 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 Subsection provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given in the manner provided in Section 106, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so given,
such Defaulted Interest shall be paid to the Persons in whose name the
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following Subsection (2).
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
SECTION 309. Intentionally left blank.
36
<PAGE> 42
SECTION 310. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 306 and 308)
interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and none of the Company, the Trustee or
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. 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 coupons be overdue, and none of the Company, the
Trustee or any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depositary, as a Holder, with respect to
such Global Security or impair, as between such depositary and owners of
beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such Global Security.
SECTION 311. CANCELLATION.
All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or exchange or
for credit against any current or future sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities and coupons so delivered to the Trustee shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
canceled by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section,
37
<PAGE> 43
except as expressly permitted by this Indenture. All canceled Securities held by
the Trustee shall be disposed of by the Trustee in accordance with its customary
procedures, unless by Company Order the Company shall direct that canceled
Securities be returned to it.
SECTION 312. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 with
respect to any Securities, interest, if any, on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 313. CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF SECURITIES.
(a) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, and with
respect to Bearer Securities of any series, except as provided in paragraph (d)
below, payment of the principal of (and premium, if any) and interest, if any,
on any Registered or Bearer Security of such series will be made in Dollars. The
provisions of this Section 313 may be modified or superseded with respect to any
Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option, subject
to paragraph (d) below, to receive payments of principal of (or premium, if any)
or interest, if any, on such Registered Securities in any of the Currencies
which may be designated for such election by delivering to the Trustee a written
election with signature guaranties and in the applicable form established
pursuant to Section 301, not later than the close of business on the Election
Date immediately preceding the applicable payment date. If a Holder so elects to
receive such payments in any such Currency, such election will remain in effect
for such Holder or any transferee of such Holder until changed by such Holder or
such transferee by written notice to the Trustee (but any such change must be
made not later than the close of business on the Election Date immediately
preceding the next payment date to be effective for the payment to be made on
such payment date and no such change of election may be made with respect to
payments to be made on any Registered Security of such series with respect to
which an Event of Default has occurred or with respect to which the Company has
deposited funds pursuant to Article Four or Fourteen or with respect to which a
notice of redemption has been given by the Company or a notice of option to
elect repayment has been sent by such Holder or such transferee). Any Holder of
any such Registered Security who shall not have delivered any such election to
the Trustee not later than the close of business on the applicable Election Date
will be paid the amount due on the applicable payment date in the relevant
Currency as provided in Section 313(a). The Trustee shall notify the Exchange
Rate Agent as soon as practicable after the Election Date of the aggregate
principal amount of Registered Securities for which Holders have made such
written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301, then, unless otherwise specified pursuant to Section 301, not later
than the fourth Business Day after the Election Date
38
<PAGE> 44
for each payment date for Registered Securities of any series, the Exchange Rate
Agent will deliver to the Company a written notice specifying, in the Currency
in which Registered Securities of such series are payable, the respective
aggregate amounts of principal of (and premium, if any) and interest, if any, on
the Registered Securities to be paid on such payment date, specifying the
amounts in such Currency so payable in respect of the Registered Securities as
to which the Holders of Registered Securities of such series shall have elected
to be paid in another Currency as provided in paragraph (b) above. If the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301 and if at least one Holder has made such election, then, unless
otherwise specified pursuant to Section 301, on the second Business Day
preceding such payment date the Company will deliver to the Trustee for such
series of Registered Securities an Exchange Rate Officers' Certificate in
respect of the Dollar or Foreign Currency payments to be made on such payment
date. Unless otherwise specified pursuant to Section 301, the Dollar or Foreign
Currency amount receivable by Holders of Registered Securities who have elected
payment in a Currency as provided in paragraph (b) above shall be determined by
the Company on the basis of the applicable Market Exchange Rate in effect on the
third Business Day (the "Valuation Date") immediately preceding each payment
date, and such determination shall be conclusive and binding for all purposes,
absent manifest error.
(d) Unless otherwise specified pursuant to Section 301, if the
Holder of a Registered Security shall have elected to be paid in a Currency
other than Dollars as provided in paragraph (b) above, and a Currency Conversion
Event occurs with respect to such elected Currency, such Holder shall receive
payment in Dollars.
(e) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Currency Conversion Date.
(f) The "Dollar Equivalent of the Currency Unit" shall be
determined as specified pursuant to Section 301. "Election Date" shall mean the
date for any series of Registered Securities as specified pursuant to clause
(11) of Section 301 by which the written election referred to in paragraph (b)
above may be made.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as
specified above shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Trustee and all Holders of such Securities denominated or payable
in the relevant Currency. The Exchange Rate Agent shall promptly give written
notice to the Company and the Trustee of any such decision or determination.
Except as otherwise provided pursuant to Section 301, in the event that
the Company determines in good faith that a Currency Conversion Event has
occurred with respect to a Foreign Currency, the Company will immediately give
written notice thereof to the Trustee and to the Exchange Rate Agent (and the
Trustee will promptly thereafter give notice in the manner provided for in
Section 106 to the affected Holders) specifying the Currency Conversion Date.
39
<PAGE> 45
Except as otherwise provided pursuant to Section 301, in the event the Company
so determines that a Currency Conversion Event has occurred with respect to any
currency unit in which Securities are payable, the Company will immediately give
written notice thereof to the Trustee and to the Exchange Rate Agent (and the
Trustee will promptly thereafter give notice in the manner provided for in
Section 106 to the affected Holders) specifying the Currency Conversion Date and
the Specified Amount of each Component Currency on the Currency Conversion Date.
In the event the Company determines in good faith that any subsequent change in
any Component Currency as set forth in the definition of Specified Amount above
has occurred, the Company will similarly give written notice to the Trustee and
the Exchange Rate Agent.
The Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the Exchange Rate
Agent and shall not otherwise have any duty or obligation to determine the
accuracy or validity of such information independent of the Company or the
Exchange Rate Agent.
SECTION 314. APPOINTMENT AND RESIGNATION OF SUCCESSOR EXCHANGE RATE AGENT.
(a) Unless otherwise specified pursuant to Section 301, if and so
long as the Securities of any series may be payable in a Currency other than
Dollars, or so long as it is required under any other provision of this
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent. The Company
will cause the Exchange Rate Agent to make the necessary foreign exchange
determinations at the time and in the manner specified pursuant to Section 301
for the purpose of determining the applicable rate of exchange and, if
applicable, for the purpose of converting Dollars into the applicable payment
Currency for the payment of principal (and premium, if any) and interest, if
any, pursuant to Section 313.
(b) No resignation of the Exchange Rate Agent and no appointment
of a successor Exchange Rate Agent pursuant to this Section shall become
effective until the acceptance of appointment by the successor Exchange Rate
Agent as evidenced by a written instrument delivered to the Company and the
Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agent for any cause with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are payable in the same Currency).
40
<PAGE> 46
SECTION 315. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use) in addition to serial numbers, and, if so, the Trustee shall
use such "CUSIP" numbers in addition to serial numbers in notices as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice and that reliance may be placed
only on the serial or other identification numbers printed on the Securities,
and any such notice shall not be affected by any defect in or omission of such
"CUSIP" numbers. The Company will promptly notify the Trustee of any change in
the "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall, upon Company Request, cease to be of further
effect with respect to any series of Securities specified in such Company
Request (except as to any surviving rights of registration of transfer or
exchange of Securities of such series expressly provided for herein or pursuant
hereto) and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any, appertaining thereto (other
than (i) coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender is not
required or has been waived as provided in Section 306, (ii) Securities and
coupons of such series which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 307, (iii) coupons appertaining to
Securities called for redemption and maturing after the relevant Redemption
Date, whose surrender has been waived as provided in Section 1106, and (iv)
Securities and coupons of such series for whose payment money has theretofore
been deposited in trust with the Trustee or any Paying Agent or segregated and
held in trust by the Company and thereafter repaid to the Company or discharged
from such Trust, as provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(B) all Securities of such series and, in the case of (i)
or (ii) below, any coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
41
<PAGE> 47
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company, and the Company, in the case of (i), (ii) or
(iii) above, has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an amount in the Currency in
which the Securities of such series are payable, sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and interest, if
any, to the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the case may
be:
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606, the obligations of
the Trustee to any Authenticating Agent under Section 612 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Subsection (1)
of this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest, if any, for whose payment such money has been
deposited with the Trustee. If the Trustee or Paying Agent is unable to apply
any money or Government Obligations in accordance with Section 401 by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture shall be revived and
reinstated as though no deposit had occurred pursuant to Section 401; provided
that if the Company has made any payment of principal of, premium, if any, or
interest on the Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of the Securities to
receive such payment from the money or Government Obligations held by the
Trustee or Paying Agent.
42
<PAGE> 48
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", 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 government body):
(1) default in the payment of any interest on any Security
when it becomes due and payable, and continuance of such default for a period of
30 days;
(2) default in the payment of the principal of (or premium, if
any, on) any Security when due;
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of the Securities of that series and Article Twelve;
(4) default in the performance, or breach, of any
covenant or warranty of the Company contained in this Indenture (other than a
default in the performance, or breach, of a covenant or warranty that is
specifically dealt with elsewhere herein), and continuance of such default or
breach for a period of 60 days after written notice has been given to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in aggregate principal amount of the Securities then outstanding;
(5) there occurs with respect to any issue or issues of
Indebtedness of the Company or any Restricted Subsidiary having an outstanding
principal amount of $50,000,000 or more in the aggregate for all such issues of
all such Persons, whether such Indebtedness exists on the date of this Indenture
or is hereafter created, (a) an event of default that has caused the holder
thereof to declare such Indebtedness to be due and payable prior to its stated
maturity and such Indebtedness shall not have been discharged in full or such
acceleration shall not have been rescinded or annulled within 30 days of such
acceleration and/or (b) the failure to make a principal payment at the final
(but not any interim) fixed maturity and such defaulted payment shall not have
been made, waived or extended within 30 days of such payment default;
(6) failure by the Company or any of its Restricted
Subsidiaries to pay, bond or otherwise discharge within 60 days one or more
final judgments or court orders for the payment of money the uninsured portion
of which exceeds in the aggregate $50,000,000, which judgments or court orders
are not stayed on appeal or are not otherwise being appropriately contested in
good faith;
(7) a court having jurisdiction in the premises enters a
decree or order for (i) relief in respect of the Company or any Restricted
Subsidiary in an involuntary case under any applicable Bankruptcy Law now or
hereafter in effect, (ii) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Restricted
43
<PAGE> 49
Subsidiary or for all or substantially all of the property and assets of the
Company or any Restricted Subsidiary or (iii) the winding up or liquidation of
the affairs of the Company or any Restricted Subsidiary and, in each case, such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(8) the Company or any Restricted Subsidiary (i)
commences a voluntary case under any applicable Bankruptcy Law now or hereafter
in effect, or consents to the entry of an order for relief in an involuntary
case under any such law, (ii) consents to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official of the Company or any Restricted Subsidiary or for all or
substantially all of the property and assets of the Company or any Restricted
Subsidiary or (iii) effects any general assignment for the benefit of creditors.
(9) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than as specified in Section 501(7) or
(8)) occurs and is continuing, the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of any series then outstanding
may, and the Trustee at the request of such Holders shall, declare the principal
of all of the outstanding Securities of such series immediately due and payable,
by a notice in writing to the Company (and to the Trustee if given by the
Holders) and, upon any such declaration, such principal shall become due and
payable immediately. If an Event of Default specified in Section 501(7) or (8)
above occurs and is continuing, then such principal 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 of Securities.
At any time after a declaration of acceleration under this Indenture,
but before a judgment or decree for payment of the money due has been obtained
by the Trustee, the Holders of a majority in aggregate principal amount of the
outstanding Securities, by written notice to the Company and the Trustee, may
rescind such declaration and its consequences if:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities,
(B) all unpaid principal of (and premium, if any, on)
any outstanding Securities that has become due otherwise than
by such declaration of acceleration and interest thereon at
the rate borne by the Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest and overdue principal
amount at the rate borne by the Securities, and
44
<PAGE> 50
(D) all sums paid or advanced by the Trustee under
this Indenture and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(ii) all Events of Default, other than the non-payment of
amounts of principal of (or premium, if any, on) or interest on the Securities
that have become due solely by such declaration of acceleration, have been cured
or waived.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if:
(a) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(b) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Stated Maturity or other maturity thereof,
the Company shall, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal (and premium, if any) and interest, with
interest upon the overdue principal (and premium, if any) and, to the extent
that payment of such interest shall be legally enforceable, upon overdue
installments of interest, at the rate borne by the Securities; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee under Section 606.
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 or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default with respect to Securities of any series (or of
all series, as the case may be) occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce 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
subject, however, to Section 513. No recovery of any such judgment upon any
property of the Company shall affect or impair any rights, powers or remedies of
the Trustee or the Holders.
45
<PAGE> 51
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, upon the Securities or the property
of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
overdue principal, premium, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect of the
Securities, to take such other actions (including participating as a member,
voting or otherwise, of any official committee of creditors appointed in such
matter) and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any Custodian 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 the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of such Holders, vote for the election of a
trustee in bankruptcy or other similar official.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
and as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
46
<PAGE> 52
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest on the Securities in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal (and premium, if any) and interest, respectively;
and
THIRD: The balance, if any, to the Person or Persons entitled thereto,
including the Company or any other obligor on the Securities, as their interests
may appear or as a court of competent jurisdiction may direct, provided that all
sums due and owing to the Holders and the Trustee have been paid in full as
required by this Indenture.
SECTION 507. 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
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 30 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 30-day period by the Holders of a majority or
more in principal amount of the Outstanding Securities of that series;
47
<PAGE> 53
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Securities of the same series or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all Holders of Securities of the same series.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 308) interest, if any, 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, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case 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 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in Section 307, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Securities or
coupons is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any 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.
48
<PAGE> 54
SECTION 512. CONTROL BY HOLDERS.
With respect to the Securities of any series, the Holders of not less
than a majority in principal amount of the Outstanding Securities of such series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, provided that in each case
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or expose the Trustee to personal liability;
(2) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders not consenting; and
(3) subject to the provisions of the TIA Section 315, the Trustee
may take any other action deemed proper by the Trustee which is not inconsistent
with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
Subject to Section 502, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past Default or Event
of Default under this Indenture, except a default in the payment of the
principal of (and premium, if any) or interest on any Note, or in respect of a
covenant or provision that under this Indenture cannot be modified or amended
without the consent of the Holder of each Note outstanding.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of Securities of
any series 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 and expenses, 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 Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of (or premium, if any) or
interest on Securities of any series on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date); provided that neither this Section 514 nor the Trust
Indenture Act shall be deemed to
49
<PAGE> 55
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS.
If a Default or an Event of Default occurs with respect to the
Securities of any series and is continuing and is known to the Trustee, the
Trustee shall mail to all Holders of the Securities notice of the Default or
Event of Default within 90 days after the occurrence thereof. Except in the case
of a Default or an Event of Default in payment of principal of (and premium, if
any, on) or interest on any Securities, the Trustee may withhold the notice to
the Holders if a committee of its trust officers in good faith determines that
withholding such notice is in the interests of the Holders.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(2) 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;
(3) 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,
request and rely upon an Officers' Certificate;
50
<PAGE> 56
(4) the Trustee may consult with counsel of its selection and any
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(5) 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 of Securities of any series 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;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney at the sole cost of the Company;
(7) 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; and
(8) 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;
and the Trustee shall not be deemed to have notice of any Default or Event of
Default, except in the case of an event of default involving failures by the
Company to pay principal, premium, if any, or interest on the Securities, unless
a Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office of the Trustee, and such notice references
the Company, the Securities or this Indenture.
SECTION 603. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except for the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder and
that the statements to be made by it in a Statement of Eligibility on Form T-1
supplied to the Company are true and accurate, subject to the qualifications set
forth
51
<PAGE> 57
therein. Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of Securities or the proceeds thereof.
SECTION 604. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and coupons
and, subject to TIA Sections 310(b) and 311, 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. The Trustee is permitted
to engage in other transactions; provided, however, that if it acquires any
conflicting interest it must eliminate such conflict or resign.
SECTION 605. 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 606. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as
shall be agreed to in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel and costs and expenses of collection),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee
(and their respective directors, officers, employees and agents) for, and to
hold it harmless against, any and all loss, damage, claim, 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 under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture and the resignation or removal of the Trustee. As
52
<PAGE> 58
security for the performance of such obligations of the Company, the Trustee
shall have a claim prior to the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the payment of
principal of (and premium, if any) or interest on particular Securities.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(7) or (8), the expenses (including
the reasonable charges and expenses of its counsel) of and the compensation for
such services are intended to constitute expenses of administration under
Bankruptcy Law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING INTERESTS.
There shall be at all times a Trustee hereunder which shall be eligible
to act as Trustee under TIA Section 310(a)(1) and which shall have an office in
The City of New York, and shall have a combined capital and surplus of at least
$100,000,000. If the Trustee does not have an office in The City of New York,
the Trustee may appoint an agent in The City of New York reasonably acceptable
to the Company to conduct any activities which the Trustee may be required under
this Indenture to conduct in The City of New York. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section 607, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 607, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 609 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may, at the
expense of the Company, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days
53
<PAGE> 59
after the giving of such notice of removal, the removed Trustee may, at the
expense of the Company, petition a court of competent jurisdiction for the
appointment of a successor Trustee.
(d) If at any time;
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
the Holder of any Security who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series). If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with Section 609, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If within 30 days of resignation or
removal of the Trustee, no successor Trustee with respect to the Securities of
any series shall have been so appointed by the Company or the Holders and
accepted appointment in the manner 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 the Securities of such series.
54
<PAGE> 60
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to the Holders of Securities of such series in the manner provided for in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; provided, however, that the
retiring Trustee shall continue to be entitled to the benefit of Section 606;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates. Whenever there is a successor Trustee with
respect to one or more (but less than all) series of securities issued pursuant
to this Indenture, the terms
55
<PAGE> 61
"Indenture" and "Securities" shall have the meanings specified in the provisos
to the respective definitions of those terms in Section 101 which contemplate
such situation.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities. In
case any of the Securities shall not have been authenticated by such predecessor
Trustee, any successor Trustee may authenticate such Securities either in the
name of any predecessor hereunder or in the name of the successor Trustee. In
all such cases such certificates shall have the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding, the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series and the Trustee shall give written notice
of such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for in
Section 106. 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. Any such appointment shall be evidenced
by an instrument in writing signed by a Responsible Officer of the Trustee, and
a copy of such instrument shall be promptly furnished to the Company. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
56
<PAGE> 62
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. If such corporation 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 corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give written notice of
such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
Dated:............
57
<PAGE> 63
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
SECTION 612. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor under the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that none of the Company or the
Trustee or any agent of either of them shall be held accountable by reason of
the disclosure of any information as to the names and addresses of the Holders
in accordance with TIA Section 312, 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 TIA Section
312(b).
SECTION 702. REPORTS BY TRUSTEE.
Within 60 days after May 15 of each year commencing with the first May
15 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit to the Holders of Securities, in the manner and to the
extent provided in TIA Section 313(c), a brief report dated as of such May 15 if
required by TIA Section 313(a).
SECTION 703. REPORTS BY COMPANY.
The Company shall:
(1) file with the Trustee, within 30 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
58
<PAGE> 64
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 such Sections, then it shall 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;
(2) 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
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof with
the Trustee, in the manner and to the extent provided in TIA Section 313(c),
such summaries of any information, documents and reports required to be filed by
the Company pursuant to Subsections (1) and (2) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE EIGHT
MERGER, CONSOLIDATION OR SALE OF ASSETS
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge with or into any other
Person or, directly or indirectly, convey, transfer or lease its properties and
assets substantially as an entirety to any Person or Persons, unless:
(a) either (i) the Company is the surviving corporation or (ii)
the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or the Person that acquires by sale, assignment,
transfer, lease or other disposition the properties and assets of the Company
substantially as an entirety (the "Surviving Entity") (A) is a corporation,
partnership or trust organized and validly existing under the laws of the United
States, any state thereof or the District of Columbia and (B) expressly assumes,
by a supplemental indenture in form satisfactory to the Trustee, all of the
Company's obligations under this Indenture and the Securities;
(b) immediately after giving effect to such transaction, and after
giving effect thereto, no Default or Event of Default shall have occurred and be
continuing; and
(c) the Company delivers, or causes to be delivered, to the
Trustee, in form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each stating that such
transaction complies with the requirements of this Indenture.
59
<PAGE> 65
SECTION 802. SUCCESSOR SUBSTITUTED.
In the event of any transaction described in and complying with the
conditions listed in Section 801 in which the Company is not the continuing
obligor under this Indenture, the Surviving Entity shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture, and thereafter the Company shall, except in the case of a lease,
be discharged from all its obligations and covenants under this Indenture and
the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in
the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities and any related coupons (and if such
covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are being included solely for the benefit of such
series) or to surrender any right or power herein or in the Securities conferred
upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be for the benefit of less than all series of Securities, stating
that such Events of Default are being included solely for the benefit of such
series); or
(4) to add to or change 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 any premium or
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 that any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become effective
only when there is no Security Outstanding of
60
<PAGE> 66
any series created prior to the execution of such supplemental indenture which
is entitled to the benefit of such provision; or
(6) to secure the Securities, if the Company so elects; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
609(b); or
(9) to close this Indenture with respect to the authentication and
delivery of additional series of Securities; or
(10) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture; provided that such action shall not adversely affect the
interests of the Holders of Securities of any series and any related coupons in
any material respect; or
(11) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 1401, 1402 and 1403;
provided that any such action shall not adversely affect the interests of the
Holders of Securities of such series and any related coupons or any other series
of Securities in any material respect;
(12) to make any other change that does not adversely affect the rights
of any Holder; or
(13) to comply with any requirement of the Commission in order to
effect and maintain the qualification of this Indenture under the Trust
Indenture Act.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities of any series, 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 one or more 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 which affect
such series of Securities or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture amendment or waiver shall, without the
consent of the Holder of each Outstanding Security of such series affected
thereby:
61
<PAGE> 67
(1) change the Stated Maturity of the principal of (or premium, if
any) or any installment of interest on any Security of such series, or reduce
the principal amount thereof (or premium, if any) or the rate of interest, if
any, thereon, or reduce the amount of the principal of an Original Issue
Discount Security of such series that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
the amount thereof provable in bankruptcy pursuant to Section 504, or adversely
affect any right of repayment at the option of any Holder of any Security of
such series, or change any Place of Payment where, or the Currency in which, any
Security of such series or any premium or interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption or repayment at the
option of the Holder, on or after the Redemption Date or Repayment Date, as the
case may be), or adversely affect any right to convert or exchange any Security
as may be provided pursuant to Section 301 herein; or
(2) reduce the percentage in principal amount of the Outstanding
Securities of such 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 which affect
such series or certain defaults applicable to such series hereunder and their
consequences) provided for in this Indenture, or reduce the requirements of
Section 1504 for a quorum or voting with respect to Securities of such series;
or
(3) modify any of the provisions of this Section 902, Section 513
or Section 1014, except to increase any such percentage or to provide that
certain other provisions of this Indenture which affect such series cannot be
modified or waived without the consent of the Holder of each Outstanding
Security affected thereby of such series.
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. Any such
supplemental indenture adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture, or modifying in any manner
the rights of the Holders of Securities of such series, shall not affect the
rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to TIA Section 315(a) through 315(d) and Section 602 hereof) shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The
62
<PAGE> 68
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.
The Company covenants and agrees for the benefit of the Holders of each
series of Securities and any related coupons that it will duly and punctually
pay the principal of (and premium, if any) and interest, if any, on the
Securities of that series in accordance with the terms of the Securities, any
coupons appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 301 with respect to any series of Securities, any
interest installments due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
63
<PAGE> 69
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
If the Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange, where Securities of that series that
are convertible or exchangeable may be surrendered for conversion or exchange,
as applicable and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities, the
Company will maintain (A) in The City of New York, an office or agency where any
Registered 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, where Securities of that series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise), (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;
provided, however, that, if the Securities of that series are listed on any
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 any required city located outside the United States 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 that 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, where Securities of
that series that are convertible and exchangeable may be surrendered for
conversion or exchange, as applicable and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served.
The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of any series and the
related coupons may be presented and surrendered for payment at the offices
specified in the Security, in London, and the Company hereby appoints the same
as its agents to receive such respective presentations, surrenders, notices and
demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, 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
64
<PAGE> 70
States or by transfer to an account maintained with a bank located in the United
States; provided, however, that, if the Securities of a series are payable in
Dollars, payment of principal of (and premium, if any) and interest, if any, on
any Bearer Security shall be made at the office of the Company's Paying Agent in
The City of New York, if (but only if) payment in Dollars of the full amount of
such principal, premium or interest, as the case may be, at all offices or
agencies outside the United States maintained for such purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
any such designation; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above 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 otherwise specified with respect to
any Securities as contemplated by Section 301 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of Securities the office or agency of the Company in the Borough of Manhattan.
The City of New York, and initially appoints the Trustee at its Corporate Trust
Office as Paying Agent in such city and as its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series may be payable in a
Currency other than Dollars, or so long as it is required under any other
provision of the Indenture, then the Company will maintain with respect to each
such series of Securities, or as so required, at least one Exchange Rate Agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities and any related coupons, it will, on or
before each due date of the principal of (or premium, if any) or interest, if
any, on any of the Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 313(b), 313(d) and 313(e)) sufficient to pay the principal
of (or premium, if any) or interest, if any, on Securities of such series 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 and any related coupons, it will, prior to or on each due
date of the principal of (or premium, if any) or interest, if any, on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency
described in the preceding paragraph) sufficient to pay the principal (or
premium, if any) or interest, if any, so becoming due, such sum to be held in
trust for the benefit
65
<PAGE> 71
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:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) and interest, if any, on Securities of such series in
trust for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any payment
of principal of (or premium, if any) or interest, if any, on the Securities of
such series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Except as provided in the Securities of any series, any money deposited
with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of (or premium, if any) or interest, if any, on any
Security of any series, or any coupon appertaining thereto, and remaining
unclaimed for two years after such principal, premium or interest has become due
and payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security or coupon shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in an Authorized
Newspaper, 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 1004. CORPORATE EXISTENCE.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Restricted Subsidiary and the corporate rights
(charter and statutory), licenses and franchises of the Company and each
Restricted Subsidiary; provided, however, that the Company shall not be
66
<PAGE> 72
required to preserve any such existence (except of the Company), right, license
or franchise if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and each of its Restricted Subsidiaries, taken as a whole.
SECTION 1005. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary; provided, however, that the Company shall not be required
to pay or discharge or cause to be paid or discharged any such tax, assessment
or charge whose amount, applicability or validity is being contested in good
faith by appropriate proceedings.
SECTION 1006. OTHER COVENANTS.
The applicable prospectus supplement will describe any material
covenants in respect of a series of Securities.
SECTION 1007. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year ending after the date hereof, a brief certificate of its
principal executive officer, principal financial officer or principal accounting
officer stating whether, to such officer's knowledge, the Company is in
compliance with all covenants and conditions to be complied with by it under
this Indenture. For purposes of this Section 1007, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 301 for Securities of
any series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Company, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount
of Securities of such series to be redeemed and shall deliver to the Trustee
67
<PAGE> 73
such documentation and records as shall enable the Trustee to select the
Securities to be redeemed pursuant to Section 1103. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal of Securities of such series; provided,
however, that no such partial redemption shall reduce the portion of the
principal amount of a Security not redeemed to less than the minimum authorized
denomination for Securities of such series established pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Except as otherwise specified as contemplated by Section 301, notice of
redemption shall be given in the manner provided for in Section 106 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 identify the Securities (including
CUSIP number, if any) to be redeemed and shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 1106, if any,
(3) if less than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security,
68
<PAGE> 74
the holder will receive, without charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and accrued
interest, if any, to the Redemption Date payable as provided in Section 1106
will become due and payable upon each such Security, or the portion thereof, to
be redeemed and, if applicable, that interest thereon will cease to accrue on
and after said date,
(6) the Place or Places of Payment where such Securities, together
in the case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be accompanied
by all coupons maturing subsequent to the Redemption Date or the amount of any
such missing coupon or coupons will be deducted from the Redemption Price unless
security or indemnity satisfactory to the Company, the Trustee and any Paying
Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on such Redemption Date pursuant to Section 306 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made; and
(10) if applicable, the Conversion Price, the date on which the
right to convert the principal of the Securities or the portions thereof to be
redeemed will terminate and the place or places where such Securities may be
surrendered for conversion.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
The Company shall deposit with the Trustee or with a Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) on or prior to the Redemption Date an amount of money
in the Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 313(b), 313(d) and 313(e))
sufficient to pay the Redemption Price of, and accrued interest, if any, on, all
the Securities which are to be redeemed on that date.
69
<PAGE> 75
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series and except, if applicable, as provided in
Sections 313(b), 313(d) and 313(e)) (together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest, if any)
such Securities shall, if the same were interest-bearing, 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 Security for redemption in accordance with said notice, together with
all coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; 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 (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and provided further
that 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 Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 308.
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 (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
70
<PAGE> 76
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered at a Place
of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
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, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
Retirements of Securities of any series pursuant to any sinking fund
shall be made in accordance with the terms of such Securities and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
Subject to Section 1203, in lieu of making all or any part of any
mandatory sinking fund payment with respect to any Securities of a series in
cash, the Company may at its option (1) deliver to the Trustee Outstanding
Securities of a series (other than any previously called for redemption)
theretofore purchased or otherwise acquired by the Company together in the case
of any Bearer Securities of such series with all unmatured coupons appertaining
thereto, and/or (2) receive credit for the principal amount of Securities of
such series which have been previously delivered to the Trustee by the Company
or for Securities of such series which have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of the same series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided, however, that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
71
<PAGE> 77
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 313(b), 313(d) and 313(e)) and the portion thereof, if any,
which is to be satisfied by delivering or crediting Securities of that series
pursuant to Section 1202 (which Securities will, if not previously delivered,
accompany such certificate) and whether the Company intends to exercise its
right to make a permitted optional sinking fund payment with respect to such
series. Such certificate shall be irrevocable and upon its delivery the Company
shall be obligated to make the cash payment or payments therein referred to, if
any, on or before the next succeeding sinking fund payment date. In the case of
the failure of the Company to deliver such certificate, the sinking fund payment
due on the next succeeding sinking fund payment date for that series shall be
paid entirely in cash and shall be sufficient to redeem the principal amount of
such Securities subject to a mandatory sinking fund payment without the option
to deliver or credit Securities as provided in Section 1202 and without the
right to make any optional sinking fund payment, if any, with respect to such
series.
Not more than 60 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
On or prior to any sinking fund payment date, the Company shall pay to
the Trustee or a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) in cash a sum
equal to any interest that will accrue to the date fixed for redemption of
Securities or portions thereof to be redeemed on such sinking fund payment date
pursuant to this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund for any
series of Securities, if at any time the amount of cash to be paid into such
sinking fund on the next succeeding sinking fund payment date, together with any
unused balance of any preceding sinking fund payment or payments for such
series, does not exceed in the aggregate $100,000, the Trustee, unless requested
by the Company, shall not give the next succeeding notice of the redemption of
Securities of such series through the operation of the sinking fund. Any such
unused balance of moneys deposited in such sinking fund shall be added to the
sinking fund payment for such series to be made in cash on the next succeeding
sinking fund payment date or, at the written request of the Company, shall be
applied at any time or from time to time to the purchase of
72
<PAGE> 78
Securities of such series, by public or private purchase, in the open market or
otherwise, at a purchase price for such Securities (excluding accrued interest
and brokerage commissions, for which the Trustee or any Paying Agent will be
promptly reimbursed by the Company) not in excess of the principal amount
thereof.
ARTICLE THIRTEEN
PURCHASE AT OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE.
Purchase by the Company of Securities of any series before their Stated
Maturity at the option of Holders thereof shall be made in accordance with the
terms of such Securities and (except as otherwise specified as contemplated by
Section 301 for Securities of any series) in accordance with this Article.
SECTION 1302. PURCHASE OF SECURITIES.
Securities of any series subject to purchase in whole or in part at the
option of the Holders thereof will, unless otherwise provided in the terms of
such Securities, be purchased at a price equal to the principal amount thereof,
together with interest, if any, thereon accrued to the Purchase Date specified
in or pursuant to the terms of such Securities. The Company covenants that on or
before the Purchase Date it will deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 1003) an amount of money in the Currency in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 313(b), 313(d) and 313(e)) sufficient to pay
the principal (or, if so provided by the terms of the Securities of any series,
a percentage of the principal) of and (except if the Purchase Date shall be an
Interest Payment Date) accrued interest, if any, on, all the Securities or
portions thereof, as the case may be, to be purchased on such date.
SECTION 1303. EXERCISE OF OPTION.
Securities of any series subject to purchase at the option of the
Holders thereof will contain an "Option to Elect Purchase" form on the reverse
of such Securities. To be purchased at the option of the Holder, any Security so
providing for such purchase, with the "Option to Elect Purchase" form on the
reverse of such Security duly completed by the Holder (or by the Holder's
attorney duly authorized in writing), must be received by the Company at the
Place of Payment therefor specified in the terms of such Security (or at such
other place or places of which the Company shall from time to time notify the
Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Purchase Date. If less than the entire principal amount of such
Security is to be purchased in accordance with the terms of such Security, the
principal amount of such Security to be purchased, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
purchased, must be specified. The principal amount of any Security providing for
purchase at the
73
<PAGE> 79
option of the Holder thereof may not be purchased in part if, following such
purchase, the unpaid principal amount of such Security would be less than the
minimum authorized denomination of Securities of the series of which such
Security to be purchased is a part. Except as otherwise may be provided by the
terms of any Security providing for purchase at the option of the Holder
thereof, exercise of the purchase option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 1304. WHEN SECURITIES PRESENTED FOR PURCHASE BECOME DUE AND PAYABLE.
If Securities of any series providing for purchase at the option of the
Holders thereof shall have been surrendered as provided in this Article and as
provided by or pursuant to the terms of such Securities, such Securities or the
portions thereof, as the case may be, to be purchased shall become due and
payable and shall be paid by the Company on the Purchase Date therein specified,
and on and after such Purchase Date (unless the Company shall default in the
payment of such Securities on such Purchase Date) such Securities shall, if the
same were interest-bearing, cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be repaid, except to the
extent provided below, shall be void. Upon surrender of any such Security for
purchase in accordance with such provisions, together with all coupons, if any,
appertaining thereto maturing after the Purchase Date, the principal amount of
such Security so to be purchased shall be paid by the Company, together with
accrued interest, if any, to the Purchase Date; provided however, that coupons
whose Stated Maturity is on or prior to the Purchase Date shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified pursuant to Section
301, only upon presentation and surrender of such coupons; and provided further
that, in the case of Registered Securities, installments of interest, if any,
whose Stated Maturity is on or prior to the Purchase Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 308.
If any Bearer Security surrendered for purchase shall not be
accompanied by all appurtenant coupons maturing after the Purchase Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 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 amid 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 as provided in the preceding sentence, 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 (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for purchase shall
not be so purchased upon surrender thereof, such principal amount (together with
interest, if any, thereon
74
<PAGE> 80
accrued to such Purchase Date) shall, until paid, bear interest from the
Purchase Date at the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) set forth in such Security.
SECTION 1305. SECURITIES PURCHASED IN PART.
Upon surrender of any Registered Security which is to be purchased in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge and at the
expense of the Company, a new Registered Security or Securities of the same
series, of any authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the principal of
such Security so surrendered which is not to be purchased.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, the provisions of this Article Fourteen shall apply to
each series of Securities, and the Company may, at its option, effect defeasance
of the Securities of or within a series under Section 1402, or covenant
defeasance of or within a series under Section 1403 in accordance with the terms
of such Securities and in accordance with this Article.
SECTION 1402. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be deemed to have been discharged from its obligations with respect to such
Outstanding Securities and any related coupons on the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities
and any related coupons, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 1405 and the other Sections of this Indenture
referred to in (A) and (B) below, and to have satisfied all its other
obligations under such Securities and any related coupons and this Indenture
insofar as such Securities and any related coupons are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any related coupons to receive, solely from the trust
fund described in Section 1404 and as more fully set forth in such Section,
payments in respect of the principal of (and premium, if any) and interest, if
any, on such Securities and any related coupons when such payments are due, (B)
the Company's obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003, (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (D) this Article Fourteen. Subject to compliance
with this Article Fourteen, the Company may exercise its option under this
Section 1402
75
<PAGE> 81
notwithstanding the prior exercise of its option under Section 1403 with
respect to such Securities and any related coupons.
SECTION 1403. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 1401 of the option applicable
to this Section 1403 with respect to any Securities of or within a series, the
Company shall be released from its obligations under any covenant under Article
Eight and in Sections 1004 through 1008, and, if specified pursuant to Section
301, its obligations under any other covenant, with respect to such Outstanding
Securities and any related coupons on and after the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "Covenant Defeasance"), and
such Securities and any related coupons shall thereafter be deemed to be not
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "Outstanding" for all other purposes
hereunder (it being understood that such Securities shall not be deemed
Outstanding for financial accounting purposes). For this purpose, such covenant
defeasance means that, with respect to such Outstanding Securities and any
related coupons, the Company may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 501(4) or Section
501(9) or otherwise, as the case may be, but, except as specified in this
Section, the remainder of this Indenture and such Securities and any related
coupons shall be unaffected thereby. In addition, upon the Company's exercise
under Section 1401 of the option applicable to Section 1403, Sections 501(4)
through 501(6) shall not constitute Events of Default.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section
1402 or Section 1403 to any Outstanding Securities of or within a series and any
related coupons:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 607 who shall agree to comply with the provisions of this Article
Fourteen applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities and any related coupons, (A)
money (in Dollars or in the Foreign Currency in which the applicable series of
Securities is payable) in an amount, or (B) Government Obligations applicable to
such Securities which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment of principal of and premium, if any, and
interest, if any, under such Securities and any related coupons, money (in
Dollars or in the Foreign Currency in which the applicable series of Securities
is payable) in an amount, or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and
76
<PAGE> 82
discharge, (i) the principal of (and premium, if any) and interest, if any, on
such Outstanding Securities and any related coupons on the Stated Maturity (or
Redemption Date, if applicable) of such principal (and premium, if any) or
installment of interest, if any, and (ii) any mandatory sinking fund payments or
analogous payments applicable to such Outstanding Securities and any related
coupons on the day on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities and any related coupons;
provided that the Trustee shall have been irrevocably instructed to apply such
money or the proceeds of such Government Obligations to said payments with
respect to such Securities and any related coupons. Before such a deposit, the
Company may give to the Trustee, in accordance with Section 1102 hereof, a
notice of its election to redeem all or any portion of such Outstanding
Securities at a future date in accordance with the terms of the Securities of
such series and Article Eleven hereof, which notice shall be irrevocable. Such
irrevocable redemption notice, if given, shall be given effect in applying the
foregoing.
(2) No Default or Event of Default with respect to such Securities
or any related coupons shall have occurred and be continuing on the date of such
deposit or, insofar as paragraphs (7) and (8) of Section 501 are concerned, at
any time during the period ending on the 91st day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(3) No event or condition shall exist that would prevent the
Company from making payments of the principal of (and premium, if any) or
interest on the Securities on the date of such deposit or at any time during the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party or by
which it is bound or cause the Trustee or the trust so created to be subject to
the Investment Company Act of 1940, as amended.
(5) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (y) since the date of execution of this Indenture, there
has been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the Holders
of such Outstanding Securities and any related coupons will not recognize
income, gain or loss for federal income tax purposes as a result of such
defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such defeasance
had not occurred.
(6) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any related coupons will not
recognize income, gain or loss for federal income tax purposes as a result of
such covenant defeasance and will be subject to federal income tax on the same
77
<PAGE> 83
amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(7) In the case of an election under either Section 1402 or 1403,
the Company shall represent to the Trustee that the deposit made by the Company
pursuant to its election under Section 1402 or 1403 was not made by the Company
with the intent of preferring the Holders of Securities of any series over other
creditors of the Company or with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others.
(8) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations in connection
therewith pursuant to Section 301.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1402 or
the covenant defeasance under Section 1403 (as the case may be) have been
complied with.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 1405, the
"Trustee") pursuant to Section 1404 in respect of such Outstanding Securities
and any related coupons shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and any related coupons 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 Holders of such Securities and any related coupons of all sums
due and to become due thereon in respect of principal (and premium, if any) and
interest, if any, but such money need not be segregated from other funds except
to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(1) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 313(b) or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 1404(1) has been made in respect of such Security, or (b) a
Currency Conversion Event occurs as contemplated in Section 313(d) or 313(e) or
by the terms of any Security in respect of which the deposit pursuant to Section
1404(1) has been made, the indebtedness represented by such Security and any
related coupons shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Security as they become due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result of
such election or Currency Conversion Event based on
78
<PAGE> 84
the applicable Market Exchange Rate for such Currency in effect on the third
Business Day prior to each payment date, except, with respect to a Currency
Conversion Event, for such Currency in effect (as nearly as feasible) at the
time of the Currency Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any related coupons.
Anything in this Article Fourteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 1404 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance, as applicable, in accordance with
this Article.
SECTION 1406. REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1405 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such
Securities and any related coupons shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1402 or 1403, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1405; provided, however, that if the Company makes any
payment of principal of (or premium, if any) or interest, if any, on any such
Security or any related coupon following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
and any related coupons to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
Except as otherwise specified as contemplated by Section 301, the
following provisions shall apply to Securities of each series.
The Company covenants and agrees, and each Holder of a Security of any
series or of any coupon appertaining thereto, by his acceptance of Securities of
any series, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article Fifteen, the indebtedness represented by
the Securities of such series and the payment of the principal of (and premium,
if any) and interest on each and all of the Securities of such series
79
<PAGE> 85
(but not amounts owing to the Trustee by the Company pursuant to Section 606
hereof) are hereby expressly made subordinate and subject in right of payment to
the prior payment in full of all Senior Indebtedness.
This Article Fifteen shall constitute a continuing offer to all persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Senior Indebtedness, and such provisions are made for the benefit of the holders
of Senior Indebtedness, and such holders are made obligees hereunder and they
and/or each of them may enforce such provisions.
SECTION 1502. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of any payment or distribution of assets of the Company
for the benefit of creditors, marshaling of assets or any bankruptcy, insolvency
or similar proceedings of the Company (each such event herein sometimes referred
to as a "Proceeding"), then except in connection with the consolidation or
merger of the Company or its liquidation or dissolution following the
conveyance, transfer or lease of its properties and assets substantially as an
entirety, upon the terms and conditions described in Article Eight, the holders
of Senior Indebtedness shall first be entitled to receive payment in full, in
cash or cash equivalents, of all amounts due or to become due on or in respect
of such Senior Indebtedness before the Holders of any Security of such series or
of any coupon appertaining thereto are entitled to receive any payment of
principal of , and premium, if any, or interest on the Securities or on account
of the purchase or redemption or other acquisition of Securities by the Company
("Securities Payment"), and the holders of Senior Indebtedness shall be entitled
to receive, for application to the payment thereof, any payment or distribution
of any kind or character, whether in cash, property or securities which may be
payable or deliverable in respect of the Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section 1502, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, before all the Senior Indebtedness is
paid in full, then such payment or distribution, except for amounts subject to
the claim granted to the Trustee in Section 606 hereof, shall be held in trust
for the holders of Senior Indebtedness and shall be paid over or delivered
forthwith to the trustee in bankruptcy or other Person making payment or
distribution of assets of the Company for application to the payment of all the
Senior Indebtedness remaining unpaid, to the extent necessary to pay all the
Senior Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of the Senior Indebtedness.
For purposes of this Article Fifteen only, the words "any payment or
distribution of any kind or character" and "cash, property or securities" shall
not be deemed to include a payment or distribution of equity or subordinated
securities of the Company provided for by a plan of reorganization or
readjustment or of any other corporation provided for by such plan of
reorganization or readjustment that, in the case of subordinated securities, are
subordinated in right of payment to all then outstanding Senior Indebtedness to
at least the same extent as the Securities, as the case may be, are so
subordinated as provided in this Article Fifteen.
80
<PAGE> 86
SECTION 1503. NO PAYMENT WHEN CERTAIN SENIOR INDEBTEDNESS IN DEFAULT.
In the event that any Senior Payment Default (as defined below) shall
have occurred and be continuing, then no Securities Payment shall be made unless
and until such Senior Payment Default shall have been cured or waived or shall
have ceased to exist or all amounts then due and payable in respect of the
Senior Indebtedness or other obligations that are the subject of such Senior
Payment Default shall have been paid in full. For purposes hereof, a "Senior
Payment Default" shall be deemed to have occurred if (1) the principal of (or
premium, if any), or interest or other amounts on, Senior Indebtedness is not
paid when due and any applicable grace period with respect to such default has
ended and such default has not been cured or waived or ceased to exist, or (2)
the maturity of any Senior Indebtedness has been accelerated because of a
default.
In the event that any Senior Nonmonetary Default (as defined below)
shall have occurred and be continuing, then, upon the receipt by the Company and
the Trustee of written notice of such Senior Nonmonetary Default from an
authorized Person on behalf of any holder of Designated Senior Indebtedness, no
Securities Payment shall be made during the period (the "Payment Blockage
Period") commencing on the date of receipt of such written notice (the "Blockage
Notice") and ending on the earliest of (i) the 180th day after the date of such
receipt of the Blockage Notice, (ii) the date, if any, on which the Designated
Senior Indebtedness to which such default relates is discharged or such default
is waived or otherwise cured and (iii) the date, if any, on which such Payment
Blockage Period shall have been terminated by written notice to the Company or
the Trustee from the Person who gave the Blockage Notice. Not more than one
Blockage Notice may be given in any consecutive 365-day period, irrespective of
the number of Senior Nonmonetary Defaults which occur during such period. No
Senior Nonmonetary Default that existed or was continuing on the date of
commencement of any Payment Blockage Period with respect to the Designated
Senior Indebtedness initiating such Payment Blockage Period shall be, or be
made, the basis for the commencement of a subsequent Payment Blockage Period
unless such Senior Nonmonetary Default shall have been cured or waived for a
period of not less than 90 consecutive days. For purposes hereof, "Senior
Nonmonetary Default" means the occurrence or existence of any event,
circumstance, condition or state of facts that, by the terms of any instrument
pursuant to which any Designated Senior Indebtedness is outstanding, permits one
or more holders of such Designated Senior Indebtedness (or a trustee or agent on
behalf of the holders thereof) to declare such Designated Senior Indebtedness
due and payable prior to the date on which it would otherwise become due and
payable, other than a Senior Payment Default.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or any Holder prohibited by the foregoing
provisions of this Section 1503, then except for the amounts subject to the
claim granted to the Trustee in Section 606, such payment shall be held in trust
for the holders of Senior Indebtedness and shall be paid over and delivered
forthwith to the holders of Senior Indebtedness remaining unpaid, to the extent
necessary to pay in full all the Senior Indebtedness.
81
<PAGE> 87
SECTION 1504. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article Fifteen or elsewhere in this
Indenture or in any of the Securities shall, at any time except during the
pendency of any Proceeding referred to in Section 1502 or under the conditions
described in Section 1503, prevent (a) the Company from making Securities
Payments, or (b) the application by the Trustee of any money deposited with it
hereunder to Securities Payments or the retention of such payment by the
Holders.
SECTION 1505. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT.
Subject to the payment in full of all Senior Indebtedness, the rights
of the Holders of the Securities shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest on the Securities shall be paid
in full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article Fifteen, and no payments over pursuant to the
provisions of this Article Fifteen to the holders of Senior Indebtedness by
Holders of the Securities or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, be deemed to be a payment or distribution by the Company to or on
account of the Senior Indebtedness. Neither the Holders of the Securities nor
the Trustee shall have any claim against the holders of the Senior Indebtedness
or the Credit Facility Agent for any impairment of the subrogation rights herein
granted arising out of any release of Liens securing the Senior Indebtedness.
SECTION 1506. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article Fifteen are and are intended solely for
the purpose of defining the relative rights of the Holders on the one hand and
the holders of Senior Indebtedness on the other hand. Nothing contained in this
Article Fifteen or elsewhere in this Indenture or in the Securities is intended
to or shall (a) impair, as among the Company, its creditors other than holders
of Senior Indebtedness and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional (and which, subject to the rights
under this Article Fifteen of the holders of Senior Indebtedness, is intended to
rank equally with all other general obligations of the Company) to pay to the
Holders of the Securities the principal of (and premium, if any) and interest on
the Securities as and when the same shall become due and payable in accordance
with their terms; or (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than the holders of
Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article Fifteen
of the holders of Senior Indebtedness to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holders. The holders of
the Senior Indebtedness shall be entitled to enforce the provisions of this
Article Fifteen against the Company, the Holders of the Securities and the
Trustee.
82
<PAGE> 88
SECTION 1507. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article Fifteen and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1508. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such Holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness, as the case may be, may, at any time and
from time to time, without the consent of or notice to the Trustee or the
Holders of the Securities, without incurring responsibility to the Trustee or
the Holders of the Securities and without impairing or releasing the
subordination provided in this Article Fifteen or the obligations hereunder of
the Holders of the Securities to the holders of Senior Indebtedness, as the case
may be, do any one or more of the following: (i) change the manner, place or
terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness, as the case may be, or otherwise amend or supplement in any manner
Senior Indebtedness, as the case may be, or any instrument evidencing the same
or any agreement under which Senior Indebtedness, as the case may be, is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (iii) release any
Person liable in any manner for the collection of Senior Indebtedness; and (iv)
exercise or refrain from exercising any rights against the Company and any other
Person.
SECTION 1509. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities and of any subsequent cure or waiver
thereof. Notwithstanding the provisions of this Article Fifteen or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Securities, unless and until the Trustee shall
have received written notice thereof from the Company or a holder of Senior
Indebtedness or from any trustee or agent therefor; and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of the Trust
Indenture Act, shall be entitled in all respects to assume that no such facts
exist.
83
<PAGE> 89
Subject to the provisions of the Trust Indenture Act, the Trustee shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee or
agent therefor) to establish that such notice has been given by a holder of
Senior Indebtedness (or a trustee or agent therefor). In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Indebtedness, as the case may
be, to participate in any payment or distribution pursuant to this Article
Fifteen, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness,
as the case may be, held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article Fifteen, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 1510. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATION AGENT.
Upon any payment or distribution of assets of the Company referred to
in this Article Fifteen, the Trustee, subject to the provisions of the Trust
Indenture Act, and the Holders of the Securities shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in a
Proceeding, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Fifteen.
SECTION 1511. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT.
Except to the extent of its obligations under the penultimate paragraph
of Section 1502 and the last paragraph of Section 1503, the Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall
not be liable to any such holders if it shall in good faith mistakenly pay over
or distribute to Holders of Securities or to the Company or to any other Person
cash, property or securities to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article Fifteen or otherwise. The Trustee's duties
with respect to holders of Senior Indebtedness are limited to those specifically
set forth in this Indenture, and no implied covenants or obligations shall be
construed by any provision hereof.
SECTION 1512. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT; PRESERVATION OF
TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Fifteen with respect to any Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder.
84
<PAGE> 90
Nothing in this Article Fifteen shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 606.
SECTION 1513. APPLICABILITY TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article Fifteen shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article Fifteen in addition to or in place of the Trustee;
provided, however, that this Section 1513 shall not apply to the Company or any
Affiliate of the Company if it or such Affiliate acts as Paying Agent.
SECTION 1514. DEFEASANCE OF THIS ARTICLE FIFTEEN.
The subordination of the Securities provided by this Article Fifteen is
expressly made subject to the provisions for defeasance or covenant defeasance
in Article Twelve hereof and, anything herein to the contrary notwithstanding,
upon the effectiveness of any such defeasance or covenant defeasance, the
Securities then outstanding shall thereupon cease to be subordinated pursuant to
this Article Fifteen.
SECTION 1515. SUBORDINATION PROVISIONS CONTROLLING.
Notwithstanding anything to the contrary contained in this Indenture,
to the extent that any provision in this Indenture (other than those contained
in Section 101) conflicts with any provision contained in Article Fifteen
(including the definitions of certain terms used in Article Fifteen) of this
Indenture, the provisions contained in Article Fifteen of this Indenture shall
govern and control.
SECTION 1516. ARTICLE FIFTEEN NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of or interest on
the Securities by reason of any provision of this Article shall not be construed
as preventing the occurrence of an Event of Default under Section 501. Nothing
contained in this Article Fifteen shall limit the right of the Trustee or the
Holders of Securities of such series and the coupons, if any, appertaining
thereto, to take any action to accelerate the maturity of the Securities
pursuant to Section 502 or to pursue any rights or remedies hereunder; PROVIDED
that all Senior Indebtedness then or thereafter due or declared to be due shall
first be paid in full before such Holders or the Trustee are entitled to receive
any payment from the Company of principal of, or interest on, the Securities.
SECTION 1517. TRUSTEE'S COMPENSATION NOT PREJUDICED.
Nothing in this Article shall apply to amounts due to the Trustee
pursuant to Section 606.
85
<PAGE> 91
ARTICLE SIXTEEN
CONVERSION
SECTION 1601. CONVERSION PRIVILEGE
It may be provided pursuant to Section 301 with respect to Registered
Securities of any series that Holders have the option to convert the principal
amount thereof (or any portion thereof that is an integral multiple of $1,000)
into fully paid and nonassessable shares of Common Stock during the time
specified for conversion of such series pursuant to Section 301. Unless
otherwise specified pursuant to Section 301, the number of shares of Common
Stock issuable upon conversion of a Security will be determined by dividing the
principal amount of the Security which is being converted by the conversion
price specified for such Security pursuant to Section 301 (the "Conversion
Price") in effect on the Conversion Date.
Provisions of this Indenture that apply to the conversion of all of a
Security pursuant to Section 301 also apply to conversion of a portion of such
Security. A Holder of Securities which are convertible pursuant to Section 301
is not entitled to any rights of a holder of Common Stock until such Holder of
Securities has converted such Securities into Common Stock, and only to the
extent that such Securities are deemed to have been converted into Common Stock
under this Article Sixteen or any other provisions applicable to such Securities
pursuant to Section 301.
SECTION 1602. CONVERSION PROCEDURE
Unless otherwise specified pursuant to Section 301, the following
procedures will apply to the conversion of Securities which are made convertible
pursuant to Section 301. To convert a Security, a Holder must satisfy the
requirements to conversion applicable to such Security established pursuant to
Section 301. The date on which the Holder satisfies all of those requirements is
the conversion date (the "Conversion Date"). As soon as practicable after the
Conversion Date, the Company will deliver to the Holder through the Conversion
Agent a certificate for the number of whole shares of Common Stock issuable upon
conversion and a check for any fractional share determined pursuant to Section
1603. The Person in whose name the certificate is registered shall become the
stockholder of record on the Conversion Date and, as of such date, such Person's
rights as a Holder with respect to the converted Security shall cease; provided,
however, that no surrender of a Security on any date when the stock transfer
books of the Company shall be closed shall be effective to constitute the Person
entitled to receive the shares of Common Stock upon such conversion as the
stockholder of record of such shares of Common Stock on such date, but such
surrender shall be effective to constitute the person entitled to receive such
shares of Common Stock as the stockholder of record thereof for all purposes at
the close of business on the next succeeding day on which such stock transfer
books are open; provided further, however, that such conversion shall be at the
Conversion Price in effect on the Conversion Date, as if the stock transfer
books of the Company had not been closed.
Except as described in this paragraph or in the second paragraph of
Section 308, no payment or adjustment will be made for accrued and unpaid
interest on a converted Security or for dividends or distributions on shares of
Common Stock issued upon conversion of a Security.
86
<PAGE> 92
If any Holder surrenders a Security for conversion after the close of business
on the Regular Record Date for the payment of an installment of interest and
prior to the opening of business on the next Interest Payment Date (such period
being referred to as the "Post Regular Record Date Period"), then,
notwithstanding such conversion, the interest payable on such Interest Payment
Date shall be paid to the Holder of such Security on such Regular Record Date.
Any Security surrendered for conversion during the Post Regular Record Date
Period (except for a Security called for redemption on a Redemption Date during
the such period) must be accompanied by payment in funds acceptable to the
Company of an amount equal to the interest payable on such Interest Payment Date
on the portion so converted. Securities which have been called for redemption on
a Redemption Date during the Post Regular Record Date Period and which are
surrendered for conversion during such period are not required to be accompanied
by such payment.
If a Holder converts more than one Security at the same time, the
number of whole shares of Common Stock issuable upon the conversion shall be
based on the total principal amount of Securities converted.
Upon surrender of a Security that is converted in part, the trustee
shall authenticate and issue to the Holder a new Security equal in principal
amount to the unconverted portion of the Security surrendered.
SECTION 1603. FRACTIONAL SHARES
The Company will not issue fractional shares of Common Stock upon
conversion of a Security. In lieu thereof, the Company will pay an amount in
cash based upon the Daily Market Price of the Common Stock on the Trading Day
prior to the Conversion Date.
SECTION 1604. TAXES ON CONVERSION
The issuance of certificates for shares of Common Stock upon the
conversion of a Security shall be made without charge to the converting Holder
for such certificates or for any tax in respect of the issuance of such
certificates, and such certificates shall be issued in the respective names of,
or in such names as may be directed by, the Holder or Holders of the converted
Securities; provided, however, that in the event that securities for shares of
Common Stock are to be issued in a name other than the name of the Holder of the
Security converted, such Security, when surrendered for conversion, shall be
accompanied by an instrument of transfer, in form satisfactory to the Company,
duly executed by the Holder thereof or his duly authorized attorney; and
provided further, however, that the Company shall not be required to pay any tax
which may be payable in respect of any transfer involved in the issuance and
delivery of any such certificates in a name other than that of the Holder of the
converted Security, and the Company shall not be required to issue or deliver
such certificates unless or until the Person or Persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid or is
not payable.
87
<PAGE> 93
SECTION 1605. COMPANY TO PROVIDE STOCK
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, solely for
the purpose of issuance upon conversion of Securities which are convertible into
Common Stock pursuant to Section 301, a sufficient number of shares of Common
Stock to permit the conversion of all of such outstanding Securities for shares
of Common Stock.
All shares of Common Stock which may be issued upon conversion of the
Securities shall be duly authorized, validly issued, fully paid and
nonassessable when so issued.
SECTION 1606. ADJUSTMENT OF CONVERSION PRICE
Unless otherwise specified pursuant to Section 301, the Conversion
Price applicable to each series of Securities which are convertible into Common
Stock pursuant to Section 301 will be subject to adjustment from time to time as
follows:
(a) In case the Company shall (i) pay a dividend in shares of
Common Stock to holders of Common Stock, (ii) make a distribution in shares of
Common Stock to holders of Common Stock, (iii) subdivide its outstanding shares
of Common Stock into a greater number of shares of Common Stock, or (iv) combine
its outstanding shares of Common Stock into a smaller number of shares of Common
Stock, the Conversion Price in effect immediately prior to such action shall be
adjusted so that the Holder of any Security thereafter surrendered for
conversion shall be entitled to receive the number of shares of Common Stock
which he would have owned immediately following such action had such Securities
been converted immediately prior thereto. Any adjustment made pursuant to this
subsection (a) shall become effective immediately after the record date in the
case of a dividend or distribution and shall become effective immediately after
the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to
substantially all holders of Common Stock entitling them (for a period
commencing no earlier than the record date for the determination of holders of
Common Stock entitled to receive such rights or warrants and expiring not more
than 45 days after such record date) to subscribe for or purchase shares of
Common Stock (or securities convertible into Common Stock) at a price per share
less than the Current Market Price (as determined pursuant to subsection (d)
below) of the Common Stock on such record date, the Conversion Price shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to such record date by a fraction
of which the numerator shall be the number of shares of Common Stock outstanding
on such record date, plus the number of shares of Common Stock which the
aggregate offering price of the offered shares of Common Stock (or the aggregate
conversion price of the convertible securities so offered) would purchase at
such Current Market Price, and of which the denominator shall be the number of
shares of Common Stock outstanding on such record date plus the number of
additional shares of Common Stock offered (or into which the convertible
securities so offered are convertible). Such adjustments shall become effective
immediately after such record date.
88
<PAGE> 94
(c) In case the Company shall distribute to substantially all
holders of Common Stock shares of any class of Capital Stock of the Company
other than Common Stock, evidences of indebtedness or other assets (other than
cash dividends or distributions out of current or retained earnings), or shall
distribute to substantially all holders of Common Stock rights or warrants to
subscribe for securities (other than those securities referred to in subsection
(b) above), then in each such case the Conversion Price shall be adjusted so
that the same shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to the date of such distribution by a fraction
of which the numerator shall be the Current Market Price (determined as provided
in subsection (d) below) of the Common stock on the record date mentioned below
less the then fair market value (as determined by the Board of Directors, whose
determination shall be conclusive evidence of such fair market value, and
described in a Board Resolution) of the portion of the assets so distributed in
respect of, or of such subscription rights or warrants applicable, to one share
of Common Stock, and of which the denominator shall be such Current Market Price
of the Common Stock. Such adjustment shall become effective immediately after
the record date for the determination of the holders of Common Stock entitled to
receive such distribution. Notwithstanding the foregoing, in case the Company
shall issue rights or warrants to subscribe for additional shares of the
Company's Capital Stock (other than those referred to in subsection (b) above)
("Rights") to substantially all holders of Common Stock, the Company may, in
lieu of making any adjustment pursuant to this Section 1606, make proper
provision so that each Holder of a Security who converts such Security (or any
portion thereof) after the record date for such distribution and prior to the
expiration or redemption of the Rights shall be entitled to receive upon such
conversion, in addition to the shares of Common Stock issuable upon such
conversion (the "Conversion Shares"), a number of Rights to be determined as
follows: (i) if such conversion occurs on or prior to the date for the
distribution to the holders of Rights of separate certificates evidencing such
Rights (the "Distribution Date"), the same number of Rights to which a holder of
a number of shares of Common Stock equal to the number of Conversion Shares is
entitled at the time of such conversion in accordance with the terms and
provisions of and applicable to the Rights; and (ii) if such conversion occurs
after the Distribution Date, the same number of Rights to which a holder of the
number of shares of Common Stock into which the principal amount of the Security
so converted was convertible immediately prior to the Distribution Date would
have been entitled on the Distribution Date in accordance with the terms and
provisions of and applicable to the Rights.
(d) The "Current Market Price" per share of Common Stock on any
date shall be deemed to be the average of the Daily Market Prices for the
shorter of (i) 30 consecutive Business Days ending on the last full Trading Day
on the exchange or market referred to in determining such Daily Market Prices
prior to the time of determination or (ii) the period commencing on the date
next succeeding the first public announcement of the issuance of such rights or
such warrants or such other distribution through such last full Trading Day on
which the distribution of rights to purchase stock or securities or distribution
of securities convertible into or exchangeable for stock made by the Company to
its stockholders will not be taxable to the recipients thereof.
(e) In any case in which this Section 1606 shall require that an
adjustment be made immediately following a record date for an event, the Company
may elect to defer, until such event, issuing to the Holder of any Security
converted after such record date the shares of
89
<PAGE> 95
Common Stock and other Capital Stock of the Company issuable upon such
conversion over and above the shares of Common Stock and other Capital Stock of
the Company issuable upon such conversion only on the basis of the Conversion
Price prior to adjustment; and, in lieu of the shares the issuance of which is
so deferred, the Company shall issue or cause its transfer agents to issue due
bills or other appropriate evidence of the right to receive such shares.
SECTION 1607. NO ADJUSTMENT
No adjustment in the Conversion Price shall be required until
cumulative adjustments amount to 1% or more of the Conversion Price as last
adjusted; provided, however, that any adjustments which by reason of this
Section 1607 are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Article
Sixteen shall be made to the nearest cent (with $.005 being rounded upward) or
to the nearest one-hundredth of a share (with .005 of a share being rounded
upward), as the case may be. No adjustment need be made for rights to purchase
Common Stock pursuant to a Company plan for reinvestment of dividends or
interest. No adjustment need be made for a change in the par value or no par
value of the Common Stock.
SECTION 1608. OTHER ADJUSTMENTS
(a) Unless otherwise specified pursuant to Section 301, in the
event that, as a result of an adjustment made pursuant to Section 1606 above,
the Holder of any Security subject to conversion and thereafter surrendered for
conversion shall become entitled to receive any shares of Capital Stock of the
Company other than shares of Common Stock, thereafter the Conversion Price of
such other shares so receivable upon conversion of any Securities shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to Common Stock
contained in this Article Sixteen.
(b) Unless otherwise specified pursuant to Section 301, in the
event that shares of Common Stock or the other securities are not delivered
after the expiration of any of the rights or warrants referred to in Section
1606(b) and Section 1606(c) hereof, the Conversion Price shall be readjusted to
the Conversion Price which would otherwise be in effect had the adjustment made
upon the issuance of such rights or warrants been made on the basis of delivery
of only the number of shares of Common Stock actually delivered.
SECTION 1609. ADJUSTMENTS FOR TAX PURPOSES
Unless otherwise specified pursuant to Section 301, the Company may, at
its option, make such reductions in the Conversion Price with respect to any
series of Securities subject to conversion, in addition to those required by
Section 1606 above, as it determines to be advisable in order that any stock
dividend, subdivision of shares, distribution of rights to purchase stock or
securities or distribution of securities convertible into or exchangeable for
stock made by the Company to its stockholders will not be taxable to the
recipients thereof.
90
<PAGE> 96
SECTION 1610. ADJUSTMENTS BY THE COMPANY
Unless otherwise specified in Section 301, the Company from time to
time may, to the extent permitted by law, reduce the Conversion Price with
respect to any series of Securities subject to conversion by any amount for any
period of at least 20 days, in which case the Company shall give at least 15
days' notice of such reduction in accordance with Section 1611, if the Board of
Directors has made a determination that such reduction would be in the best
interests of the Company, which determination shall be conclusive.
SECTION 1611. NOTICE OF ADJUSTMENT
Whenever the Conversion Price with respect to any series of Securities
subject to conversion is adjusted, the Company shall promptly mail to Holders of
the Securities of such series at the addresses appearing on the Security
Register a notice of the adjustment and file with the Trustee an Officers'
Certificate briefly stating the facts requiring the adjustment and the manner of
computing it. The certificate shall be conclusive evidence of the correctness of
such adjustment.
SECTION 1612. NOTICE OF CERTAIN TRANSACTIONS
In the event that:
(1) the Company takes any action which would require an adjustment in
the Conversion Price;
(2) the Company takes any action that would require a supplemental
indenture pursuant to Section 1613; or
(3) there is a dissolution or liquidation of the Company;
a Holder of a Security that is subject to conversion pursuant to Section 301 may
wish to convert such Security into shares of Common Stock prior to the record
date for or the effective date of the transaction so that such Holder may
receive the rights, warrants, securities or assets which a holder of shares of
Common Stock on that date may receive. Therefore, the Company shall mail to
Holders of such Securities at the addresses appearing on the Security Register
and to the Trustee a notice stating the proposed record or effective date, as
the case may be. The Company shall mail the notice at least 15 days before such
date; however, failure to mail such notice or any defect therein shall not
affect the validity of any transaction referred to in clause (1), (2) or (3) of
this Section 1612.
SECTION 1613. EFFECT OF RECLASSIFICATIONS, CONSOLIDATIONS, MERGERS OR SALES ON
CONVERSION PRIVILEGE
If any of the following shall occur (and on the date of such occurrence
there are Securities outstanding under this Indenture that are subject to
conversion pursuant to Section 301), namely: (i) any reclassification or change
of outstanding shares of Common Stock (other
91
<PAGE> 97
than a change in par value, or from par value to no par value, or from no par
value to par value, or as a result of a subdivision or combination), (ii) any
consolidation or merger to which the Company is a party other than a merger in
which the Company is the continuing corporation and which does not result in any
reclassification of, or change (other than a change in name, or par value, or
from par value to no par value, or from no par value to par value or as a result
of a subdivision or combination) in, outstanding shares of Common Stock or (iii)
any sale or conveyance of all or substantially all of the property or business
of the Company as an entirety, then the Company, or such successor or purchasing
corporation, as the case may be, shall, as a condition precedent to such
reclassification, change, consolidation, merger, sale or conveyance, execute and
deliver to the Trustee a supplemental indenture in form satisfactory to the
Trustee providing that the Holder of each Security then outstanding (which is
subject to conversion pursuant to Section 301) shall have the right to convert
such Security into the kind and amount of shares of stock and other securities
and property (including cash) receivable upon such reclassification, change,
consolidation, merger, sale or conveyance by a holder of the number of shares of
Common Stock deliverable upon conversion of such Security immediately prior to
such reclassification, change, consolidation, merger, sale or conveyance. Such
supplemental indenture shall provide for adjustments of the Conversion Price
which shall be as nearly equivalent as may be practicable to the adjustments of
the Conversion Price provided for in this Article Sixteen. The foregoing,
however, shall not in any way affect the right a Holder of a Security may
otherwise have, pursuant to clause (ii) of the last sentence of subsection (c)
of Section 1601, to receive Rights upon conversion of a Security. If, in the
case of any such consolidation, merger, sale or conveyance, the stock or other
securities and property (including cash) receivable thereupon by a holder of
Common Stock includes shares of stock or other securities and property of a
corporation other than the successor or purchasing corporation, as the case may
be, in such consolidation, merger, sale or conveyance, then such supplemental
indenture shall also be executed by such other corporation and shall contain
such additional provisions to protect the interests of the Holders of the
Securities (which are subject to conversion pursuant to Section 301) as the
Board of Directors of the Company shall reasonably consider necessary by reason
of the foregoing. The provision of this Section 1613 shall similarly apply to
successive consolidations, mergers, sales or conveyances.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 1613, the Company shall promptly file with the Trustee
an Officers' Certificate briefly stating the reasons therefor, the kind or
amount of shares of stock or securities or property (including cash) receivable
by Holders of the Securities (which are subject to conversion pursuant to
Section 301) upon the conversion of their Securities after any such
reclassification, change, consolidation, merger, sale or conveyance and any
adjustment to be made with respect thereto.
SECTION 1614. TRUSTEE'S DISCLAIMER
The Trustee has no duty to determine when an adjustment under this
Article Sixteen should be made, how it should be made or what such adjustment
should be, but may accept as conclusive evidence of the correctness of any such
adjustment, and shall be protected in relying upon the Officers' Certificate
with respect thereto which the Company is obligated to file with the Trustee
pursuant to Section 1611. The Trustee makes no representation as to the validity
or
92
<PAGE> 98
value of any securities or assets issued upon conversion of Securities, and the
Trustee shall not be responsible for the Company's failure to comply with any
provisions of this Article Sixteen.
The Trustee shall not be under any responsibility to determine the correctness
of any provisions contained in any supplemental indenture executed pursuant to
Section 1613, but may accept as conclusive evidence of the correctness thereof,
and shall be protected in relying upon, the Officers' Certificate with respect
thereto which the Company is obligated to file with the Trustee pursuant to
Section 1613.
ARTICLE SEVENTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1701. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
If Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1702. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1701, to be held
at such time and at such place in 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 the
manner provided for in Section 106, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in 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 1701, 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 paragraph (a)
of this Section.
SECTION 1703. 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
93
<PAGE> 99
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 Person 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 1704. 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 not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such 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 any other case the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1702(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
any adjourned meeting shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned
for lack of a quorum the Persons entitled to vote 25% in principal amount of the
Outstanding Securities at the time shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of
not less than a majority in principal amount of the Outstanding Securities of
such series; provided however, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action 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 not less than such specified percentage in
principal amount of the Outstanding Securities of such 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.
94
<PAGE> 100
Notwithstanding the foregoing provisions of this Section 1704, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for such meeting; and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under this
Indenture.
SECTION 1705. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) Notwithstanding any provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a 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 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 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 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1702(b), 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 chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of
Outstanding Securities of such series held or represented by him (determined as
specified in the definition of "Outstanding" in Section 101); provided, however,
that no vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding.
95
<PAGE> 101
The chairman 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 1502 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 1706. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the Secretary of the meeting and there shall be
attached to 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 1702 and, if
applicable, Section 1704. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
96
<PAGE> 102
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
SCI SYSTEMS, INC.
By:
----------------------------------
Name:
----------------------------
Title:
----------------------------
________________, As Trustee
By:
----------------------------------
Name:
----------------------------
Title:
----------------------------
97
<PAGE> 103
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[INSERT TITLE OR SUFFICIENT DESCRIPTION
OF SECURITIES TO BE DELIVERED]
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate the income of which is subject
to United States federal income taxation regardless of its source, or any trust
whose administration is subject to the primary supervision of a United States
court and which has one or more United States fiduciaries who have the authority
to control all substantial decisions of the trust ("United States person(s)"),
(ii) are owned by United States person(s) that are (a) foreign branches of
United States financial institutions (financial institutions, as defined in the
United States Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred
to as "financial institutions") purchasing for their own account or for resale,
or (b) United States person(s) who acquired the Securities through foreign
branches of United States financial institutions and who hold the Securities
through such United States financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution hereby
agrees, on its own behalf or through its agent, that you may advise SCI Systems,
Inc. or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are
owned by United States or foreign financial institution(s) for purposes of
resale during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)), this is to further
certify that such financial institution has not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
98
<PAGE> 104
This certificate excepts and does not relate to [U.S.$] ____ of such
interest in the above-captioned Securities in respect of which we are not able
to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be 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: [TO BE DATED NO EARLIER THAN THE 15TH DAY PRIOR TO (I) THE
EXCHANGE DATE OR (II) THE RELEVANT INTEREST PAYMENT DATE OCCURRING PRIOR TO THE
EXCHANGE DATE, AS APPLICABLE]
[NAME OF PERSON MAKING CERTIFICATION]
--------------------------------------
(AUTHORIZED SIGNATORY)
Name:
----------------------------------
Title:
----------------------------------
99
<PAGE> 105
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[INSERT TITLE OR SUFFICIENT DESCRIPTION
OF SECURITIES TO BE DELIVERED]
This is to certify that based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S. $] _____ principal
amount of the above-captioned Securities (i) is owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate the income of which is subject to United States
Federal income taxation regardless of its source, or any trust whose
administration is subject to the primary supervision of a United States court
and which has one or more United States fiduciaries who have the authority to
control all substantial decisions of the trust ("United States person(s)"), (ii)
is owned by United States person(s) that are (a) foreign branches of United
States financial institutions (financial institutions, as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred to as
"financial institutions") purchasing for their own account or for resale, or (b)
United States person(s) who acquired the Securities through foreign branches of
United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case (a)
or (b), each such financial institution has agreed, on its own behalf or through
its agent, that we may advise SCI Systems, Inc. or its agent that such financial
institution will 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), or (ii) is owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) and, to
the further effect, that financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the states and District of Columbia); and its "possessions" include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary Global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member
100
<PAGE> 106
Organizations and (ii) as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange (or, if relevant, collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in collection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced r 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: [TO BE DATED NO EARLIER THAN THE EXCHANGE DATE OR THE RELEVANT
INTEREST PAYMENT DATE OCCURRING PRIOR TO THE EXCHANGE DATE, AS APPLICABLE]
[SIGNATURE]
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
101
<PAGE> 1
EXHIBIT 5.1
February 4, 2000
SCI Systems, Inc.
2101 West Clinton Avenue
Huntsville, AL 35807
Re: SCI SYSTEMS, INC. - REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
I am General Counsel for SCI Systems, Inc. (the "Company") and in such
capacity I have examined the Registration Statement on Form S-3 (No. 333-95297),
including Amendment No. 1 thereto (the "Registration Statement"), filed by the
Company with the Securities and Exchange Commission in connection with the
registration pursuant to the Securities Act of 1933, as amended (the "Act"), of
the following:
(i) the Company's debt securities (the "Debt Securities");
(ii) shares of the Company's Common Stock, $0.10 par value per
share (the "Common Stock");
(iii) shares of the Company's Preferred Stock, no par value per
share (the "Preferred Stock");
(iv) depositary shares (the "Depositary Shares") each representing
a fraction of a share of preferred stock; and
(v) warrants for the purchase of Debt Securities, Common Stock or
Preferred Stock (the "Warrants").
The securities under the Registration Statement may have an aggregate offering
price of up to $800,000,000 or the equivalent thereof in one or more foreign
currencies or composite currencies. The Debt Securities, the Common Stock, the
Preferred Stock, the Depositary Shares and the Warrants are to be sold from time
to time as set forth in the Registration Statement, the prospectus contained
therein and the supplements to the prospectus (such prospectus together with the
applicable prospectus supplement, herein the "Prospectus"). The Debt Securities
may be either senior debt securities (the "Senior Debt Securities") or
subordinated debt securities (the "Subordinated Debt Securities").
I have examined instruments, documents and records which I deemed
relevant and necessary for the basis of my opinion hereinafter expressed. In
such examination, I have assumed (a) the authenticity of original documents and
the genuineness of all signatures, (b) the conformity to the originals of all
documents submitted to me as copies and (c) the truth, accuracy
<PAGE> 2
SCI Systems, Inc.
February 4, 2000
Page 2
and completeness of the information, representations, and warranties contained
in the records, documents, instruments and certificates I have reviewed.
Based on such examination, I am of the opinion that:
1. When the issuance of Senior Debt Securities has been duly
authorized by appropriate corporate action and the Senior Debt Securities have
been duly executed, authenticated and delivered as described in the Registration
Statement and the Prospectus, the Senior Debt Securities will be legal, valid
and binding obligations of the Company.
2. When the issuance of Subordinated Debt Securities has been
duly authorized by appropriate corporate action and the Subordinated Debt
Securities have been duly executed, authenticated and delivered as described in
the Registration Statement and the Prospectus, the Subordinated Debt Securities
will be legal, valid and binding obligations of the Company.
3. When (i) the terms of any particular series of Preferred Stock
have been established in accordance with the resolutions of the Company's Board
of Directors authorizing the issuance and sale of such series of Preferred
Stock, (ii) a Certificate of Designation conforming to the Delaware General
Corporation Law regarding such series of Preferred Stock has been filed with the
Secretary of State of the State of Delaware, and (iii) shares of such series of
Preferred Stock have been issued, sold and delivered as described in the
Registration Statement and the Prospectus, and in accordance with the terms of
the particular series as established by the Company's Board of Directors, the
shares of Preferred Stock will be legally issued, fully paid and nonassessable.
4. When the issuance of the shares of Common Stock has been duly
authorized by appropriate corporation action, including any Common Stock that
may be issuable pursuant to the conversion of any Preferred Stock, Warrants or
Debt Securities, and the shares of Common Stock have been duly issued, sold and
delivered as described in the Registration Statement and the Prospectus, the
shares of Common Stock will be legally issued, fully paid and nonassessable.
5. When the issuance of Depositary Shares with respect to any
shares of Preferred Stock referred to in paragraph 3 of this opinion has been
duly authorized by appropriate corporate action and the Depositary Shares have
been duly executed and delivered as described in the Registration Statement and
the Prospectus, the Depositary Shares will be legal, valid and binding
obligations of the Company.
6. When the issuance of Warrants for the purchase of Senior Debt
Securities, Subordinated Debt Securities, Preferred Stock or Common Stock
referred to in paragraphs 1, 2, 3 and 4, respectively, of this opinion has been
duly authorized by appropriate corporate action and the Warrants have been duly
executed and delivered as described in the Registration Statement and the
Prospectus, the Warrants will be legal, valid and binding obligations of the
Company.
My opinion that any document is legal, valid and binding is qualified
as to:
<PAGE> 3
SCI Systems, Inc.
February 4, 2000
Page 3
(a) limitations imposed by bankruptcy, insolvency, reorganization,
arrangement, fraudulent conveyance, moratorium or other laws relating to or
affecting the rights of creditors generally;
(b) rights to indemnification and contribution which may be
limited by applicable law or equitable principles; and
(c) general principles of equity, including without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, and the
possible unavailability of specific performance or injunctive relief and
limitation of rights of acceleration, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
I hereby consent to the filing of this opinion as an exhibit to the
above-referenced Registration Statement and the use of my name wherever it
appears in the Registration Statement, the Prospectus, the Prospectus
Supplement, and in any amendment or supplement thereto. In giving such consent,
I do not believe that I am an "expert" within the meaning of such term used in
the Act or the rules and regulations of the Securities and Exchange Commission
issued thereunder with respect to any part of the Registration Statement,
including this opinion as an exhibit or otherwise.
Very truly yours,
Michael M. Sullivan
General Counsel
SCI Systems, Inc.
<PAGE> 1
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)____
-----------------
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: STEVEN M. WAGNER, DIRECTOR, (312) 407-1819
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------
SCI SYSTEMS, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 63-0583436
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
2101 WEST CLINTON AVENUE
HUNTSVILLE, ALABAMA 35805
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
SENIOR DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.; Federal
Deposit Insurance Corporation, Washington, D.C.; The
Board of Governors of the Federal Reserve System,
Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE
TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE
OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART
OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of
the trustee now in effect.
2. A copy of the certificates of authority of
the trustee to commence business.
3. A copy of the authorization of the trustee
to exercise corporate trust powers.
4. A copy of the existing by-laws of the
trustee.
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
<PAGE> 3
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, National Association, a
national banking association organized and existing under the laws of
the United States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago and State of Illinois, on
the 4th day of February, 2000.
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION, TRUSTEE
BY /s/ Steven M. Wagner
--------------------------------------
Steven M. Wagner
Director
<PAGE> 4
EXHIBIT 1
A COPY OF THE ARTICLES OF ASSOCIATION OF THE
TRUSTEE NOW IN EFFECT
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
FIRST. The title of this Association shall be BANK ONE TRUST COMPANY, National
Association.
SECOND. The main office of the Association shall be in the City of Columbus,
County of Franklin, State of Ohio.
The business of the Association will be limited to the fiduciary powers and the
support of activities incidental to the exercise of those powers. The
Association will not expand or alter its business beyond that stated in this
article without the prior approval of the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall consist of not less
than five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full Board of
Directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
the Association, or of a holding company owning the Association, with an
aggregate par, fair market or equity value of not less than $1,000, as of
either (i) the date of purchase, (ii) the date the person became a director, or
(iii) the date of that person's most recent election to the Board of Directors,
whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used.
Any vacancy in the Board of Directors may be filled by action of a majority of
the remaining directors between meetings of shareholders. The Board of
Directors may not increase the number of directors between meetings of
shareholders to a number which: (1) exceeds by more than two the number of
directors last elected by shareholders where the number was 15 or less; or (2)
exceeds by more than four the number of directors last elected by shareholders
where the number was 16 or more, but in no event shall the number of directors
exceed 25.
Terms of directors, including directors selected to fill vacancies, shall
expire at the next regular meeting of shareholders at which directors are
elected, unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
<PAGE> 5
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of a majority of the full Board of Directors, or
by resolution of shareholders at any annual or special meeting. Honorary or
advisory directors shall not be counted to determine the number of directors of
the Association or the presence of a quorum in connection with any board
action, and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It
shall be held at the main office or any other convenient place the Board of
Directors may designate, on the day of each year specified therefor in the
Bylaws or, if that day falls on a legal holiday in the state in which the
Association is located, on the next following banking day. If no election is
held on the day fixed or in the event of a legal holiday on the following
banking day, an election may be held on any subsequent day within 60 days of
the day fixed, to be designated by the Board of Directors or, if the directors
fail to fix the day, by shareholders representing two-thirds of the shares
issued and outstanding. In all cases at least 10 days advance notice of the
meeting shall be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of
the affirmative requirements for qualification, or for cause, provided,
however, that a director may not be removed if the number of votes sufficient
to elect him or her under cumulative voting is voted against his or her
removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time
<PAGE> 6
determine and at such price as the Board of Directors may from time to time
fix. Unless otherwise specified in the Articles of Association or required by
law, (1) all matters requiring shareholder action, including amendments to the
Articles of Association, must be approved by shareholders owning a majority
voting interest in the outstanding voting stock, and (2) each shareholder shall
be entitled to one vote per share.
Unless otherwise specified in the Articles of Association or required by law,
all shares of voting stock shall be voted together as a class on any matters
requiring shareholder approval. If a proposed amendment would affect two or
more classes or series in the same or a substantially similar way, all the
classes or series so affected must vote together as a single voting group on
the proposed amendment.
Shares of the same class or series may be issued as a dividend on a pro rata
basis and without consideration. Shares of another class or series may be
issued as share dividends in respect of a class or series of stock if approved
by a majority of the votes entitled to be cast by the class or series to be
issued unless there are no outstanding shares of the class or series to be
issued. Unless otherwise provided by the Board of Directors, the record date
for determining shareholders entitled to a share dividend shall be the date the
Board of Directors authorizes the share dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than 70 days
before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive
rights, a stock dividend, consolidation or merger, reverse stock split or
otherwise, the Association may: (a) issue fractional shares or; (b) in lieu of
the issuance of fractional shares, issue script or warrants entitling the
holder to receive a full share upon surrendering enough script or warrants to
equal a full share; (c) if there is an established and active market in the
Association's stock, make reasonable arrangements to provide the shareholder
with an opportunity to realize a fair price through sale of the fraction, or
purchase of the additional fraction required for a full share; (d) remit the
cash equivalent of the fraction to the shareholder; or (e) sell full shares
representing all the fractions at public auction or to the highest bidder after
having solicited and received sealed bids from at least three licensed stock
brokers, and distribute the proceeds pro rata to shareholders who otherwise
would be entitled to the fractional shares. The holder of a fractional share is
entitled to exercise the rights for shareholder, including the right to vote,
to receive dividends, and to participate in the assets of the Association upon
liquidation, in proportion to the fractional interest. The holder of script or
warrants is not entitled to any of these rights unless the script or warrants
explicitly provide for such rights. The script or warrants may be subject to
such additional conditions as: (1) that the script or warrants will become void
if not exchanged for full shares before a specified date; and (2) that the
shares for which the script or warrants are exchangeable may be sold at the
option of the Association and the proceeds paid to scriptholders.
6
<PAGE> 7
The Association, at any time and from time to time, may authorize and issue
debt obligations, whether or not subordinated, without the approval of the
shareholders. Obligations classified as debt, whether or not subordinated,
which may be issued by the Association without the approval of shareholders, do
not carry voting rights on any issue, including an increase or decrease in the
aggregate number of the securities, or the exchange or reclassification of all
or part of securities into securities of another class or series.
SIXTH. The Board of Directors shall appoint one of its members president of
this Association, and one of its members chairperson of the board and shall
have the power to appoint one or more vice presidents, a secretary who shall
keep minutes of the directors' and shareholders' meetings and be responsible
for authenticating the records of the Association, and such other officers and
employees as may be required to transact the business of this Association. A
duly appointed officer may appoint one or more officers or assistant officers
if authorized by the Board of Directors in accordance with the Bylaws. The
Board of Directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for
its duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its
officers and employees upon reasonable terms and conditions consistent
with applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty
thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital
of the Association shall be made, provided that nothing herein shall
restrict the power of shareholders to increase or decrease the capital
of the association in accordance with law, and nothing shall raise or
lower from two-thirds the percentage for shareholder approval to
increase or reduce the capital.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial Bylaws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of
the Association.
(10) Amend or repeal Bylaws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a Board of Directors to
perform.
7
<PAGE> 8
SEVENTH. The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City of Columbus, State of Ohio, without the approval of the shareholders; and
shall have the power to change the location of the main office of this
Association to any other place outside the limits of the City of Columbus,
State of Ohio, but not more than thirty miles beyond such limits, with the
affirmative vote of shareholders owning two-thirds of the stock of the
Association, subject to receipt of a certificate of approval from the
Comptroller of the Currency. The Board of Directors shall have the power to
establish or change the location of any branch or branches of the Association
to any other location permitted under applicable law without the approval of
the shareholders, subject to approval by the Office of the Comptroller of the
Currency. The Board of Directors shall have the power to establish or change
the location of any nonbranch office or facility of the Association without the
approval of the shareholders.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. The Board of Directors of this Association, or any shareholders owning,
in the aggregate, not less than 20 percent of the stock of this Association,
may call a special meeting of shareholders at any time. Unless otherwise
provided by the Bylaws or the laws of the United States, or waived by
shareholders, a notice of the time, place, and purpose of every annual and
special meeting of the shareholders shall be given by first-class mail, postage
prepaid, mailed at least 10, and no more than 60, days prior to the date of the
meeting to each shareholder of record at his/her address as shown upon the
books of this Association. Unless otherwise provided by the Bylaws, any action
requiring approval of shareholders must be effected at a duly called annual or
special meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a Director, officer or employee of the Association
or of any other corporation which he served as a Director, officer or employee
at the request of the Association as part of his regularly assigned duties may
be indemnified by the Association in accordance with the provisions of this
Article against all liability (including, without limitation, judgments, fines,
penalties, and settlements) and all reasonable expenses (including, without
limitation, attorneys' fees and investigative expenses) that may be incurred or
paid by him in connection with any claim, action, suit or proceeding, whether
civil, criminal or administrative (all referred to hereafter in this Article as
"Claims") or in connection with any appeal relating thereto in which he may
become involved as a party or otherwise or with which he may be threatened by
reason of his being or having been a Director, officer or employee of the
Association or such other corporation, or by reason of any action taken or
omitted by him in his capacity as such Director, officer or employee, whether
or not he continues to be such at the time such liability or expenses are
incurred; provided that nothing contained in this Article shall be construed to
permit indemnification of any such person who is adjudged guilty of, or liable
for, willful misconduct, gross neglect of duty or criminal acts, unless, at the
time such indemnification is sought, such indemnification in such instance is
permissible under applicable law and regulations, including published rulings
of the Comptroller of the Currency or other appropriate
8
<PAGE> 9
supervisory or regulatory authority; and provided further that there shall be
no indemnification of Directors, officers, or employees against expenses,
penalties, or other payments incurred in an administrative proceeding or action
instituted by an appropriate regulatory agency which proceeding or action
results in a final order assessing civil money penalties or requiring
affirmative action by an individual or individuals in the form of payments to
the Association.
Every person who may be indemnified under the provisions of this Article and
who has been wholly successful on the merits with respect to any Claim shall be
entitled to indemnification as of right. Except as provided in the preceding
sentence, any indemnification under this Article shall be at the sole
discretion of the Board of Directors and shall be made only if the Board of
Directors or the Executive Committee acting by a quorum consisting of Directors
who are not parties to such Claim shall find or if independent legal counsel
(who may be the regular counsel of the Association) selected by the Board of
Directors or Executive Committee whether or not a disinterested quorum exists
shall render their opinion that in view of all of the circumstances then
surrounding the Claim, such indemnification is equitable and in the best
interests of the Association. Among the circumstances to be taken into
consideration in arriving at such a finding or opinion is the existence or
non-existence of a contract of insurance or indemnity under which the
Association would be wholly or partially reimbursed for such indemnification,
but the existence or non-existence of such insurance is not the sole
circumstance to be considered nor shall it be wholly determinative of whether
such indemnification shall be made. In addition to such finding or opinion, no
indemnification under this Article shall be made unless the Board of Directors
or the Executive Committee acting by a quorum consisting of Directors who are
not parties to such Claim shall find or if independent legal counsel (who may
be the regular counsel of the Association) selected by the Board of Directors
or Executive Committee whether or not a disinterested quorum exists shall
render their opinion that the Directors, officer or employee acted in good
faith in what he reasonably believed to be the best interests of the
Association or such other corporation and further in the case of any criminal
action or proceeding, that the Director, officer or employee reasonably
believed his conduct to be lawful. Determination of any Claim by judgment
adverse to a Director, officer or employee by settlement with or without Court
approval or conviction upon a plea of guilty or of nolo contendere or its
equivalent shall not create a presumption that a Director, officer or employee
failed to meet the standards of conduct set forth in this Article. Expenses
incurred with respect to any Claim may be advanced by the Association prior to
the final disposition thereof upon receipt of an undertaking satisfactory to
the Association by or on behalf of the recipient to repay such amount unless it
is ultimately determined that he is entitled to indemnification under this
Article.
The rights of indemnification provided in this Article shall be in addition to
any rights to which any Director, officer or employee may otherwise be entitled
by contract or as a matter of law. Every person who shall act as a Director,
officer or employee of this Association shall be conclusively presumed to be
doing so in reliance upon the right of indemnification provided for in this
Article.
9
<PAGE> 10
ELEVENTH. These Articles of Association may be amended at any regular or
special meeting of the shareholders by the affirmative vote of the holders of a
majority of the stock of this Association, unless the vote of the holders of a
greater amount of stock is required by law, and in that case by the vote of the
holders of such greater amount. The Association's Board of Directors may
propose one or more amendments to the Articles of Association for submission to
the shareholders. .
10
<PAGE> 11
EXHIBIT 2
A COPY OF THE CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et
seq., as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio,
(Charter No. 16235) is a National Banking Association formed under the laws of
the United States and is authorized thereunder to transact the business of
banking on the date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
24th day of March, 1999.
/s/ John D. Hawke, Jr.
---------------------------
Comptroller of the Currency
<PAGE> 12
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et
seq., as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio,
(Charter No. 16235) was granted, under the hand and seal of the Comptroller,
the right to act in all fiduciary capacities authorized under the provisions of
the Act of Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a,
and that the authority so granted remains in full force and effect on the date
of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
24th day of March, 1999.
/s/ John D. Hawke, Jr.
----------------------------
Comptroller of the Currency
<PAGE> 13
EXHIBIT 4
A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE
BANK ONE TRUST COMPANY, National Association.
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the shareholders of
the Bank for the election of Directors and for the transaction of such business
as may properly come before the meeting shall be held at its main office, or
other convenient place duly authorized by the Board of Directors, on the same
day upon which any regular or special Board meeting is held from and including
the first Monday of January to, and including, the fourth Monday of February of
each year, or on the next succeeding banking day, if the day fixed falls on a
legal holiday. If from any cause, an election of Directors is not made on the
day fixed for the regular meeting of the shareholders or, in the event of a
legal holiday, on the next succeeding banking day, the Board of Directors shall
order the election to be held on some subsequent day, as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting. Notice of such
annual meeting shall be given by or under the direction of the Secretary, or
such other officer as may be designated by the Chief Executive Officer, by
first-class mail, postage prepaid, to all shareholders of record of the Bank at
their respective addresses as shown upon the books of the Bank mailed not less
than ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of the
Bank may be called at any time by the Board of Directors or by any three or
more shareholders owning, in the aggregate, not less than ten percent of the
stock of the Bank. Notice of any special meeting of the shareholders called by
the Board of Directors, stating the time, place and purpose of the meeting,
shall be given by or under the direction of the Secretary, or such other
officer as is designated by the Chief Executive Officer, by first-class mail,
postage prepaid, to all shareholders of record of the Bank at their respective
addresses as shown upon the books of the Bank mailed not less than ten days
prior to the date fixed for such meeting. Any special meeting of shareholders
shall be conducted and its proceedings recorded in the manner prescribed in
these By-Laws for annual meetings of shareholders.
<PAGE> 14
SECTION 1.03. SECRETARY OF MEETING OF SHAREHOLDERS. The Board of Directors may
designate a person to be the secretary of the meeting of shareholders. In the
absence of a presiding officer, as designated by these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as secretary
of the meeting. The secretary of the meeting of shareholders shall cause the
returns made by the judges of election and other proceedings to be recorded in
the minute books of the Bank. The presiding officer shall notify the
Directors-elect of their election and to meet forthwith for the organization of
the new Board of Directors. The minutes of the meeting shall be signed by the
presiding officer and the secretary designated for the meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many as
three shareholders to be judges of the election, who shall hold and conduct the
same, and who shall, after the election has been held, notify, in writing over
their signatures, the secretary of the meeting of shareholders of the result
thereof and the names of the Directors elected; provided, however, that upon
failure for any reason of any judge or judges of election, so appointed by the
Directors, to serve, the presiding officer of the meeting shall appoint other
shareholders or their proxies to fill the vacancies. The judges of election, at
the request of the chairman of the meeting, shall act as tellers of any other
vote by ballot taken at such meeting, and shall notify, in writing over their
signature, the secretary of the Board of Directors of the result thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall
have the right to vote the number of shares of record in such shareholder's
name for as many persons as there are Directors to be elected, or to cumulate
such shares as provided by Federal Law. In deciding all other questions at
meetings of shareholders, each shareholder shall be entitled to one vote on
each share of stock of record in such shareholder's name. Shareholders may vote
by proxy duly authorized in writing. All proxies used at the annual meeting
shall be secured for that meeting only, or any adjournment thereof, and shall
be dated, if not dated by the shareholder, as of the date of the receipt
thereof. No officer or employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to
time until a quorum is obtained. A majority of the votes cast shall decide
every question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.01. QUALIFICATIONS. Each Director shall have the qualifications
prescribed by law. No person elected as a Director may exercise any of the
powers of office until such Director has taken the oath of such office.
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year
or until their successors are elected and qualified. Any vacancy in the Board
shall be filled by appointment of the remaining Directors, and any Director so
appointed shall hold office until the next election.
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding officer of the annual meeting. If at the time fixed for
such meeting there is no quorum present, the Directors in attendance may
adjourn from time to time until a quorum is obtained. A majority
14
<PAGE> 15
of the number of Directors elected by the shareholders shall constitute a
quorum for the transaction of business.
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief Executive Officer, or President may
fix. Whenever a quorum is not present, the Directors in attendance shall
adjourn the meeting to a time not later than the date fixed by the By-Laws for
the next succeeding regular meeting of the Board. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors
shall be held at the call of the Chairman of the Board, Chief Executive
Officer, or President, or at the request of two or more Directors. Any special
meeting may be held at such place and at such time as may be fixed in the call.
Written or oral notice shall be given to each Director not later than the day
next preceding the day on which the special meeting is to be held, which notice
may be waived in writing. The presence of a Director at any meeting of the
Board of Directors shall be deemed a waiver of notice thereof by such Director.
Whenever a quorum is not present, the Directors in attendance shall adjourn the
special meeting from day to day until a quorum is obtained. Members of the
Board of Directors may participate in such meetings through use of conference
telephone or similar communications equipment, so long as all members
participating in such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank
may be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall receive
such fees for attendance at Board and Board committee meetings and such fees
for service as a Director, irrespective of meeting attendance, as from time to
time are fixed by resolution of the Board; provided, however, that payment
hereunder shall not be made to a Director for meetings attended and/or Board
service which are not for the Bank's sole
15
<PAGE> 16
benefit and which are concurrent and duplicative with meetings attended or
Board service for an affiliate of the Bank for which the Director receives
payment; and provided further that fees hereunder shall not be paid in the case
of any Director in the regular employment of the Bank or of one of its
affiliates. Each member of the Board of Directors, whether or not such Director
is in the regular employment of the Bank or of one of its affiliates, shall be
reimbursed for travel expenses incident to attendance at Board and Board
committee meetings.
SECTION 2.08. EXECUTIVE COMMITTEE. There may be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all the powers of the Board that
may lawfully be delegated. The Executive Committee shall consist of at least
three Board members, one of whom shall be the Chairman of the Board, Chief
Executive Officer or the President. The other members of the Executive
Committee shall be appointed by the Chairman of the Board, the Chief Executive
Officer, or the President, with the approval of the Board, and who shall
continue as members of the Executive Committee until their successors are
appointed, provided, however, that any member of the Executive Committee may be
removed by the Board upon a majority vote thereof at any regular or special
meeting of the Board. The Chairman, Chief Executive Officer, or President shall
fill any vacancy in the Executive Committee by the appointment of another
Director, subject to the approval of the Board of Directors. The Executive
Committee shall meet at the call of the Chairman, Chief Executive Officer, or
President or any two members thereof at such time or times and place as may be
designated. In the event of the absence of any member or members of the
Executive Committee, the presiding member may appoint a member or members of
the Board to fill the place or places of such absent member or members to serve
during such absence. Two members of the Executive Committee shall constitute a
quorum. When neither the Chairman of the Board, the Chief Executive Officer,
nor President are present, the Executive Committee shall appoint a presiding
officer. The Executive Committee shall report its proceedings and the action
taken by it to the Board of Directors.
SECTION 2.09. OTHER COMMITTEES. The Board of Directors may appoint such special
committees from time to time as are in its judgment necessary in the interest
of the Bank.
ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF.
(a) The executive officers of the Bank shall include a Chairman of the Board,
Chief Executive Officer, President, Chief Financial Officer, Secretary,
Security Officer, and may include one or more Senior Managing Directors or
Managing Directors. The Chairman of the Board, Chief Executive Officer,
President, any Senior Managing Director, any Managing Director, Chief Financial
Officer, Secretary, and Security Officer shall be elected by the Board. The
Chairman of the Board, Chief Executive Officer, and the President shall be
elected by the Board from their own number. Such officers as the Board shall
elect from their own number shall hold office from the date of their election
as officers until the organization meeting of the Board of Directors following
the next annual meeting of shareholders, provided, however, that such officers
may be relieved of their duties at any time by action of the Board of
Directors, in which event all the powers incident to their office shall
immediately terminate. The Chairman of the Board, Chief Executive Officer, or
the President shall preside at all meetings of shareholders and meetings of the
Board of Directors.
(b) The management staff of the Bank shall include officers elected by the
Board, officers appointed by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director,
the Chief Financial Officer, and such other persons in the employment of the
Bank who, pursuant to authorization by a duly authorized officer of the Bank,
perform management functions and have management responsibilities. Any two or
more offices may be held by the same person except that no person shall hold
the office
16
<PAGE> 17
of Chairman of the Board, Chief Executive Officer and/or President and at the
same time also hold the office of Secretary.
(c) Except as provided in the case of the elected officers who are members of
the Board, all officers and employees, whether elected or appointed, shall hold
office at the pleasure of the Board. Except as otherwise limited by law or
these By-Laws, the Board assigns to the Chairman of the Board, the Chief
Executive Officer, the President, any Senior Managing Director, any Managing
Director, the Chief Financial Officer, and/or each of their respective
designees the authority to control all personnel, including elected and
appointed officers and employees of the Bank, to employ or direct the
employment of such officers and employees as he or she may deem necessary,
including the fixing of salaries and the dismissal of such officers and
employees at pleasure, and to define and prescribe the duties and
responsibilities of all officers and employees of the Bank, subject to such
further limitations and directions as he or she may from time to time deem
appropriate.
(d) The Chairman of the Board, the Chief Executive Officer, the President, any
Senior Managing Director, any Managing Director, the Chief Financial Officer,
and any other officer of the Bank, to the extent that such officer is
authorized in writing by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, or
the Chief Financial Officer may appoint persons other than officers who are in
employment of the Bank to serve in management positions and in connection
therewith, the appointing officer may assign such title, salary,
responsibilities and functions as are deemed appropriate, provided, however,
that nothing contained herein shall be construed as placing any limitation on
the authority of the Chairman of the Board, the Chief Executive Officer, the
President, any Senior Managing Director, any Managing Director, or the Chief
Financial Officer as provided in this and other sections of these By-Laws.
(e) The Senior Managing Directors and the Managing Directors of the Bank shall
have general and active authority over the management of the business of the
Bank, shall see that all orders and resolutions of the Board of Directors are
carried into effect, and shall do or cause to be done all things necessary or
proper to carry on the business of the Bank in accordance with provisions of
applicable law and regulations. Each Senior Managing Director and Managing
Director shall perform all duties incident to his or her office and such other
and further duties, as may from time to time be required by the Chief Executive
Officer, the President, the Board of Directors, or the shareholders. The
specification of authority in these By-Laws wherever and to whomever granted
shall not be construed to limit in any manner the general powers of delegation
granted to a Senior Managing Director or a Managing Director in conducting the
business of the Bank. In the absence of a Senior Managing Director or a
Managing Director, such officer as is designated by the Senior Managing
Director or the Managing Director shall be vested with all the powers and
perform all the duties of the Senior Managing Director or the Managing Director
as defined by these By-Laws.
17
<PAGE> 18
(f) Each Managing Director who is assigned oversight of one or more trust
service offices shall appoint a management committee known as the Investment
Management and Trust Committee consisting of the Managing Director of the trust
service offices and at least three other members who shall be capable and
experienced officers of the Bank appointed from time to time by the Managing
Director and who shall continue as members of the Investment Management and
Trust Committee until their successors are appointed, provided, however, that
any member of the Investment Management and Trust Committee may be removed by
the Managing Director as provided in this and other sections of these By-Laws.
The Managing Director shall fill any vacancy in the Investment Management and
Trust Committee by the appointment of another capable and experienced officer
of the Bank. Each Investment Management and Trust Committee shall meet at such
date, time and place as the Managing Director shall fix. In the event of the
absence of any member or members of the Investment Management and Trust
Committee, the Managing Director may, in his or her discretion, appoint another
officer of the Bank to fill the place or places of such absent member or
members to serve during such absence. A majority of each Investment Management
and Trust Committee shall constitute a quorum. Each Investment Management and
Trust Committee shall carry out the policies of the Bank, as adopted by the
Board of Directors, which shall be formulated and executed in accordance with
State and Federal Law, Regulations of the Comptroller of the Currency, and
sound fiduciary principles. In carrying out the policies of the Bank, each
Investment Management and Trust Committee is hereby authorized to establish
management teams whose duties and responsibilities shall be specifically set
forth in the policies of the Bank. Each such management team shall report such
proceedings and the actions taken thereby to the Investment Management and
Trust Committee. Each Managing Director shall then report such proceedings and
the actions taken thereby to the Board of Directors.
SECTION 3.02. POWERS AND DUTIES OF MANAGEMENT STAFF. Pursuant to the fiduciary
powers granted to this Bank under the provisions of Federal Law and Regulations
of the Comptroller of the Currency, the Chairman of the Board, the Chief
Executive Officer, the President, the Senior Managing Directors, the Managing
Directors, the Chief Financial Officer, and those officers so designated and
authorized by the Chairman of the Board, the Chief Executive Officer, the
President, the Senior Managing Directors, the Managing Directors, or the Chief
Financial Officer are authorized for and on behalf of the Bank, and to the
extent permitted by law, to make loans and discounts; to purchase or acquire
drafts, notes, stocks, bonds, and other securities for investment of funds held
by the Bank; to execute and purchase acceptances; to appoint, empower and
direct all necessary agents and attorneys; to sign and give any notice required
to be given; to demand payment and/or to declare due for any default any debt
or obligation due or payable to the Bank upon demand or authorized to be
declared due; to foreclose any mortgages; to exercise any option, privilege or
election to forfeit, terminate, extend or renew any lease; to authorize and
direct any proceedings for the collection of any money or for the enforcement
of any right or obligation; to adjust, settle and compromise all claims of
every kind and description in favor of or against the Bank, and to give
receipts, releases and discharges therefor; to borrow money and in connection
therewith to make, execute and deliver notes, bonds or other evidences of
indebtedness; to pledge or hypothecate any securities or any stocks, bonds,
notes or any property real or personal held or owned by the Bank, or to
rediscount any notes or other obligations held or owned by the Bank, whenever
in his or her judgment it is reasonably necessary for the operation of the
Bank; and in furtherance of and in addition to the powers hereinabove set forth
to do all such acts and to take all such proceedings as in his or her judgment
are necessary and incidental to the operation of the Bank.
SECTION 3.03. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control of
the records of the Bank and, subject to the direction of the Chief Executive
Officer, shall undertake other duties and functions usually performed by a
corporate secretary. Other officers may be designated by the Secretary as
Assistant Secretary to perform the duties of the Secretary.
18
<PAGE> 19
SECTION 3.04. EXECUTION OF DOCUMENTS. Any member of the Bank's management staff
or any employee of the Bank designated as an officer on the Bank's payroll
system is hereby authorized for and on behalf of the Bank to sell, assign,
lease, mortgage, transfer, deliver and convey any real or personal property,
including shares of stock, bonds, notes, certificates of indebtedness
(including the assignment and redemption of registered United States
obligations) and all other forms of intangible property now or hereafter owned
by or standing in the name of the Bank, or its nominee, or held by the Bank as
collateral security, or standing in the name of the Bank, or its nominee, in
any fiduciary capacity or in the name of any principal for whom this Bank may
now or hereafter be acting under a power of attorney or as agent, and to
execute and deliver such partial releases from any discharges or assignments of
mortgages and assignments or surrender of insurance policies, deeds, contracts,
assignments or other papers or documents as may be appropriate in the
circumstances now or hereafter held by the Bank in its own name, in a fiduciary
capacity, or owned by any principal for whom this Bank may now or hereafter be
acting under a power of attorney or as agent; provided, however, that, when
necessary, the signature of any such person shall be attested or witnessed in
each case by another officer of the Bank.
Any member of the Bank's management staff or any employee of the Bank
designated as an officer on the Bank's payroll system is hereby authorized for
and on behalf of the Bank to execute any indemnity and fidelity bonds, trust
agreements, proxies or other papers or documents of like or different character
necessary, desirable or incidental to the appointment of the Bank in any
fiduciary capacity, the conduct of its business in any fiduciary capacity, or
the conduct of its other banking business; to sign and issue checks, drafts,
orders for the payment of money and certificates of deposit; to sign and
endorse bills of exchange, to sign and countersign foreign and domestic letters
of credit, to receive and receipt for payments of principal, interest,
dividends, rents, fees and payments of every kind and description paid to the
Bank, to sign receipts for money or other property acquired by or entrusted to
the Bank, to guarantee the genuineness of signatures on assignments of stocks,
bonds or other securities, to sign certifications of checks, to endorse and
deliver checks, drafts, warrants, bills, notes, certificates of deposit and
acceptances in all business transactions of the Bank; also to foreclose any
mortgage, to execute and deliver receipts for any money or property; also to
sign stock certificates for and on behalf of this Bank as transfer agent or
registrar, and to authenticate bonds, debentures, land or lease trust
certificates or other forms of security issued pursuant to any indenture under
which this Bank now or hereafter is acting as trustee or in any other fiduciary
capacity; to execute and deliver various forms of documents or agreements
necessary to effectuate certain investment strategies for various fiduciary or
custody customers of the Bank, including, without limitation, exchange funds,
options, both listed and over-the-counter, commodities trading, futures
trading, hedge funds, limited partnerships, venture capital funds, swap or
collar transactions and other similar investment vehicles for which the Bank
now or in the future may deem appropriate for investment of fiduciary customers
or in which non-fiduciary customers may direct investment by the Bank.
19
<PAGE> 20
Without limitation on the foregoing, the Chief Executive Officer, Chairman of
the Board, or President of the Bank shall have the authority from time to time
to appoint officers of the Bank as Vice President for the sole purpose of
executing releases or other documents incidental to the conduct of the Bank's
business in any fiduciary capacity where required by state law or the governing
document. In addition, other persons in the employment of the Bank or its
affiliates may be authorized by the Chief Executive Officer, Chairman of the
Board, President, Senior Managing Directors, Managing Directors, or Chief
Financial Officer to perform acts and to execute the documents described in the
paragraph above, subject, however, to such limitations and conditions as are
contained in the authorization given to such person.
SECTION 3.05. PERFORMANCE BOND. All officers and employees of the Bank shall be
bonded for the honest and faithful performance of their duties for such amount
as may be prescribed by the Board of Directors.
ARTICLE IV
STOCKS AND STOCK CERTIFICATES
SECTION 4.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
evidenced by certificates which shall bear the signature of the Chairman of the
Board, the Chief Executive Officer, or the President (which signature may be
engraved, printed or impressed), and shall be signed manually by the Secretary,
or any other officer appointed by the Chief Executive Officer for that purpose.
In case any such officer who has signed or whose facsimile signature has been
placed upon such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Bank with the same effect as if
such officer had not ceased to be such at the time of its issue. Each such
certificate shall bear the corporate seal of the Bank, shall recite on its face
that stock represented thereby is transferable only upon the books of the Bank
when properly endorsed and shall recite such other information as is required
by law and deemed appropriate by the Board. The corporate seal may be facsimile
engraved or printed.
SECTION 4.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank shall
be transferable only upon the stock transfer books of the Bank and, except as
hereinafter provided, no transfer shall be made or new certificates issued
except upon the surrender for cancellation of the certificate or certificates
previously issued therefor. In the case of the loss, theft, or destruction of
any certificate, a new certificate may be issued in place of such certificate
upon the furnishing of an affidavit setting forth the circumstances of such
loss, theft, or destruction and indemnity satisfactory to the Chairman of the
Board, the Chief Executive Officer, or the President. The Board of Directors or
the Chairman of the Board, Chief Executive Officer, or the President may
authorize the issuance of a new certificate therefor without the furnishing of
indemnity. Stock transfer books, in which all transfers of stock shall be
recorded, shall be provided. The stock transfer books may be closed for a
reasonable period and under such conditions as the Board of Directors may at
20
<PAGE> 21
any time determine, for any meeting of shareholders, the payment of dividends
or any other lawful purpose. In lieu of closing the transfer books, the Board
of Directors may, in its discretion, fix a record date and hour constituting a
reasonable period prior to the day designated for the holding of any meeting of
the shareholders or the day appointed for the payment of any dividend, or for
any other purpose at the time as of which shareholders entitled to notice of
and to vote at any such meeting or to receive such dividend or to be treated as
shareholders for such other purpose shall be determined, and only shareholders
of record at such time shall be entitled to notice of or to vote at such
meeting or to receive such dividends or to be treated as shareholders for such
other purpose.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.01. SEAL. The seal of the Bank shall be circular in form with "SEAL"
in the center, and the name "BANK ONE TRUST COMPANY, National Association"
located clockwise around the upper half of the seal.
SECTION 5.02. MINUTE BOOK. The organization papers of this Bank, the Articles
of Association, the returns of judges of elections, the By-Laws and any
amendments thereto, the proceedings of all regular and special meetings of the
shareholders and of the Board of Directors, and reports of the committees of
the Board of Directors shall be recorded in the minute books of the Bank. The
minutes of each such meeting shall be signed by the presiding officer and
attested by the secretary of the meeting.
SECTION 5.03. CORPORATE POWERS. The corporate existence of the Bank shall
continue until terminated in accordance with the laws of the United States. The
purpose of the Bank shall be to carry on the general business of a commercial
bank trust department and to engage in such activities as are necessary,
incident, or related to such business. The Articles of Association of the Bank
shall not be amended, or any other provision added elsewhere in the Articles
expanding the powers of the Bank, without the prior approval of the Comptroller
of the Currency.
SECTION 5.04. AMENDMENT OF BY-LAWS. The By-Laws may be amended, altered or
repealed, at any regular or special meeting of the Board of Directors, by a
vote of a majority of the Directors.
21
<PAGE> 22
<TABLE>
<S> <C>
As amended April 24, 1991 Section 3.01 (Officers and Management Staff)
Section 3.02 (Chief Executive Officer)
Section 3.03 (Powers and Duties of Officers and Management Staff)
Section 3.05 (Execution of Documents)
As amended January 27, 1995 Section 2.04 (Regular Meetings)
Section 2.05 (Special Meetings)
Section 3.01(f) (Officers and Management Staff)
Section 3.03(e) (Powers and Duties of Officers
and Management Staff)
Section 5.01 (Seal)
</TABLE>
Amended and restated in its entirety effective May 1, 1996
<TABLE>
<S> <C>
As amended August 1, 1996 Section 2.09 (Trust Examining Committee)
Section 2.10 (Other Committees)
As amended October 16, 1997 Section 3.01 (Officers and Management Staff)
Section 3.02 (Powers and Duties of Officers and
Management Staff)
Section 3.04 (Execution of Documents)
</TABLE>
As amended January 1, 1998 Section 1.01 (Annual Meeting)
22
<PAGE> 23
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
February 4, 2000
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an indenture between SCI SYSTEMS, INC.
and Bank One Trust Company, National Association, as Trustee, the undersigned,
in accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, hereby consents that the reports of examinations of the undersigned,
made by Federal or State authorities authorized to make such examinations, may
be furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
BY: /s/ Steven M. Wagner
--------------------------------
STEVEN M. WAGNER
DIRECTOR
<PAGE> 24
EXHIBIT 7
<TABLE>
<CAPTION>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/99 State #: 391581 FFIEC 032
Address: 100 Broad Street Vendor ID: D Cert #: 21377 Page RC-1
City, State Zip: Columbus, OH 43271 Transit #: 04400003
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
DOLLAR AMOUNTS IN THOUSANDS C300
----
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCON
----
a. Noninterest-bearing balances and currency and coin(1).................... 0081 123,692 1.a
b. Interest-bearing balances(2)............................................. 0071 17,687 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)................ 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)............. 1773 5,860 2.b
3. Federal funds sold and securities purchased under agreements to
resell...................................................................... 1350 364,813
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCON
----
RC-C)....................................................................... 2122 58,020 4.a
b. LESS: Allowance for loan and lease losses................................ 3123 10 4.b
c. LESS: Allocated transfer risk reserve.................................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCON
----
reserve (item 4.a minus 4.b and 4.c)........................................ 2125 58,010 4.d
5. Trading assets (from Schedule RD-D)......................................... 3545 0 5.
6. Premises and fixed assets (including capitalized leases).................... 2145 22,547 6.
7. Other real estate owned (from Schedule RC-M)................................ 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).............................................. 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding................ 2155 0 9.
10. Intangible assets (from Schedule RC-M)...................................... 2143 27,151 10.
11. Other assets (from Schedule RC-F)........................................... 2160 141,759 11.
12. Total assets (sum of items 1 through 11).................................... 2170 761,519 12.
</TABLE>
- ---------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 25
<TABLE>
<CAPTION>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/99 State #: 391581 FFIEC 032
Address: 100 Broad Street Vendor ID: D Cert #: 21377 Page RC-2
City, State Zip: Columbus, OH 43271 Transit #: 04400003
SCHEDULE RC-CONTINUED
DOLLAR AMOUNTS IN
THOUSANDS
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits: RCON
a. In domestic offices (sum of totals of columns A and C ----
from Schedule RC-E, part 1)............................................. 2200 589,846 13.a
(1) Noninterest-bearing(1).............................................. 6631 517,140 13.a1
(2) Interest-bearing.......................... 6636 72,706 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)......................................
(1) Noninterest bearing.................................................
(2) Interest-bearing....................................................
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 0 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 0 15.a
b. Trading Liabilities(from Sechedule RC-D)................................ RCFD 3548 0 15.b
16. Other borrowed money: RCON
----
a. With original maturity of one year or less.............................. 2332 0 16.a
b. With original maturity of more than one year........................... A547 0 16.b
c. With original maturity of more than three years ........................ A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding.................... 2920 0 18.
19. Subordinated notes and debentures.......................................... 3200 0 19.
20. Other liabilities (from Schedule RC-G)..................................... 2930 63,244 20.
21. Total liabilities (sum of items 13 through 20)............................. 2948 653,090 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.............................. 3838 0 23.
24. Common stock............................................................... 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock) 3839 45,157 25.
26. a. Undivided profits and capital reserves.................................. 3632 62,458 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities............................................................. 8434 14 26.b
c. Accumulated net gains (losses) on cash flow hedges...................... 4336 0 26.c
27. Cumulative foreign currency translation adjustments........................
28. Total equity capital (sum of items 23 through 27).......................... 3210 108,429 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)...................................... 3300 761,519 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement
below that best describes the most comprehensive level of
auditing work performed for the bank by independent external ------------------
auditors as of any date during 1996 Number
....................RCFD 6724 ................... N/A M1
------------------
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm
which submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated
holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external
auditors (may be required by the state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ---------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE> 1
Exhibit 25.2
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)_____
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: STEVEN M. WAGNER, DIRECTOR, (312) 407-1819
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------
SCI SYSTEMS, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 63-0583436
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
2101 WEST CLINTON AVENUE
HUNTSVILLE, ALABAMA 35805
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
SUBORDINATED DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.; Federal
Deposit Insurance Corporation, Washington, D.C.; The
Board of Governors of the Federal Reserve System,
Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE
TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE
OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART
OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of
the trustee now in effect.
2. A copy of the certificates of authority of
the trustee to commence business.
3. A copy of the authorization of the trustee
to exercise corporate trust powers.
4. A copy of the existing by-laws of the
trustee.
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
<PAGE> 3
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, National Association, a
national banking association organized and existing under the laws of
the United States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago and State of Illinois, on
the 4th day of February, 2000.
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION, TRUSTEE
BY /s/ Steven M. Wagner
--------------------------------------
Steven M. Wagner
Director
<PAGE> 4
EXHIBIT 1
A COPY OF THE ARTICLES OF ASSOCIATION OF THE
TRUSTEE NOW IN EFFECT
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
FIRST. The title of this Association shall be BANK ONE TRUST COMPANY, National
Association.
SECOND. The main office of the Association shall be in the City of Columbus,
County of Franklin, State of Ohio.
The business of the Association will be limited to the fiduciary powers and the
support of activities incidental to the exercise of those powers. The
Association will not expand or alter its business beyond that stated in this
article without the prior approval of the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall consist of not less
than five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full Board of
Directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
the Association, or of a holding company owning the Association, with an
aggregate par, fair market or equity value of not less than $1,000, as of
either (i) the date of purchase, (ii) the date the person became a director, or
(iii) the date of that person's most recent election to the Board of Directors,
whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used.
Any vacancy in the Board of Directors may be filled by action of a majority of
the remaining directors between meetings of shareholders. The Board of
Directors may not increase the number of directors between meetings of
shareholders to a number which: (1) exceeds by more than two the number of
directors last elected by shareholders where the number was 15 or less; or (2)
exceeds by more than four the number of directors last elected by shareholders
where the number was 16 or more, but in no event shall the number of directors
exceed 25.
Terms of directors, including directors selected to fill vacancies, shall
expire at the next regular meeting of shareholders at which directors are
elected, unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
<PAGE> 5
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of a majority of the full Board of Directors, or
by resolution of shareholders at any annual or special meeting. Honorary or
advisory directors shall not be counted to determine the number of directors of
the Association or the presence of a quorum in connection with any board
action, and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It
shall be held at the main office or any other convenient place the Board of
Directors may designate, on the day of each year specified therefor in the
Bylaws or, if that day falls on a legal holiday in the state in which the
Association is located, on the next following banking day. If no election is
held on the day fixed or in the event of a legal holiday on the following
banking day, an election may be held on any subsequent day within 60 days of
the day fixed, to be designated by the Board of Directors or, if the directors
fail to fix the day, by shareholders representing two-thirds of the shares
issued and outstanding. In all cases at least 10 days advance notice of the
meeting shall be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of
the affirmative requirements for qualification, or for cause, provided,
however, that a director may not be removed if the number of votes sufficient
to elect him or her under cumulative voting is voted against his or her
removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time
<PAGE> 6
determine and at such price as the Board of Directors may from time to time
fix. Unless otherwise specified in the Articles of Association or required by
law, (1) all matters requiring shareholder action, including amendments to the
Articles of Association, must be approved by shareholders owning a majority
voting interest in the outstanding voting stock, and (2) each shareholder shall
be entitled to one vote per share.
Unless otherwise specified in the Articles of Association or required by law,
all shares of voting stock shall be voted together as a class on any matters
requiring shareholder approval. If a proposed amendment would affect two or
more classes or series in the same or a substantially similar way, all the
classes or series so affected must vote together as a single voting group on
the proposed amendment.
Shares of the same class or series may be issued as a dividend on a pro rata
basis and without consideration. Shares of another class or series may be
issued as share dividends in respect of a class or series of stock if approved
by a majority of the votes entitled to be cast by the class or series to be
issued unless there are no outstanding shares of the class or series to be
issued. Unless otherwise provided by the Board of Directors, the record date
for determining shareholders entitled to a share dividend shall be the date the
Board of Directors authorizes the share dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than 70 days
before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive
rights, a stock dividend, consolidation or merger, reverse stock split or
otherwise, the Association may: (a) issue fractional shares or; (b) in lieu of
the issuance of fractional shares, issue script or warrants entitling the
holder to receive a full share upon surrendering enough script or warrants to
equal a full share; (c) if there is an established and active market in the
Association's stock, make reasonable arrangements to provide the shareholder
with an opportunity to realize a fair price through sale of the fraction, or
purchase of the additional fraction required for a full share; (d) remit the
cash equivalent of the fraction to the shareholder; or (e) sell full shares
representing all the fractions at public auction or to the highest bidder after
having solicited and received sealed bids from at least three licensed stock
brokers, and distribute the proceeds pro rata to shareholders who otherwise
would be entitled to the fractional shares. The holder of a fractional share is
entitled to exercise the rights for shareholder, including the right to vote,
to receive dividends, and to participate in the assets of the Association upon
liquidation, in proportion to the fractional interest. The holder of script or
warrants is not entitled to any of these rights unless the script or warrants
explicitly provide for such rights. The script or warrants may be subject to
such additional conditions as: (1) that the script or warrants will become void
if not exchanged for full shares before a specified date; and (2) that the
shares for which the script or warrants are exchangeable may be sold at the
option of the Association and the proceeds paid to scriptholders.
6
<PAGE> 7
The Association, at any time and from time to time, may authorize and issue
debt obligations, whether or not subordinated, without the approval of the
shareholders. Obligations classified as debt, whether or not subordinated,
which may be issued by the Association without the approval of shareholders, do
not carry voting rights on any issue, including an increase or decrease in the
aggregate number of the securities, or the exchange or reclassification of all
or part of securities into securities of another class or series.
SIXTH. The Board of Directors shall appoint one of its members president of
this Association, and one of its members chairperson of the board and shall
have the power to appoint one or more vice presidents, a secretary who shall
keep minutes of the directors' and shareholders' meetings and be responsible
for authenticating the records of the Association, and such other officers and
employees as may be required to transact the business of this Association. A
duly appointed officer may appoint one or more officers or assistant officers
if authorized by the Board of Directors in accordance with the Bylaws. The
Board of Directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for
its duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its
officers and employees upon reasonable terms and conditions consistent
with applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty
thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital
of the Association shall be made, provided that nothing herein shall
restrict the power of shareholders to increase or decrease the capital
of the association in accordance with law, and nothing shall raise or
lower from two-thirds the percentage for shareholder approval to
increase or reduce the capital.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial Bylaws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of
the Association.
(10) Amend or repeal Bylaws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a Board of Directors to
perform.
7
<PAGE> 8
SEVENTH. The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City of Columbus, State of Ohio, without the approval of the shareholders; and
shall have the power to change the location of the main office of this
Association to any other place outside the limits of the City of Columbus,
State of Ohio, but not more than thirty miles beyond such limits, with the
affirmative vote of shareholders owning two-thirds of the stock of the
Association, subject to receipt of a certificate of approval from the
Comptroller of the Currency. The Board of Directors shall have the power to
establish or change the location of any branch or branches of the Association
to any other location permitted under applicable law without the approval of
the shareholders, subject to approval by the Office of the Comptroller of the
Currency. The Board of Directors shall have the power to establish or change
the location of any nonbranch office or facility of the Association without the
approval of the shareholders.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. The Board of Directors of this Association, or any shareholders owning,
in the aggregate, not less than 20 percent of the stock of this Association,
may call a special meeting of shareholders at any time. Unless otherwise
provided by the Bylaws or the laws of the United States, or waived by
shareholders, a notice of the time, place, and purpose of every annual and
special meeting of the shareholders shall be given by first-class mail, postage
prepaid, mailed at least 10, and no more than 60, days prior to the date of the
meeting to each shareholder of record at his/her address as shown upon the
books of this Association. Unless otherwise provided by the Bylaws, any action
requiring approval of shareholders must be effected at a duly called annual or
special meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a Director, officer or employee of the Association
or of any other corporation which he served as a Director, officer or employee
at the request of the Association as part of his regularly assigned duties may
be indemnified by the Association in accordance with the provisions of this
Article against all liability (including, without limitation, judgments, fines,
penalties, and settlements) and all reasonable expenses (including, without
limitation, attorneys' fees and investigative expenses) that may be incurred or
paid by him in connection with any claim, action, suit or proceeding, whether
civil, criminal or administrative (all referred to hereafter in this Article as
"Claims") or in connection with any appeal relating thereto in which he may
become involved as a party or otherwise or with which he may be threatened by
reason of his being or having been a Director, officer or employee of the
Association or such other corporation, or by reason of any action taken or
omitted by him in his capacity as such Director, officer or employee, whether
or not he continues to be such at the time such liability or expenses are
incurred; provided that nothing contained in this Article shall be construed to
permit indemnification of any such person who is adjudged guilty of, or liable
for, willful misconduct, gross neglect of duty or criminal acts, unless, at the
time such indemnification is sought, such indemnification in such instance is
permissible under applicable law and regulations, including published rulings
of the Comptroller of the Currency or other appropriate
8
<PAGE> 9
supervisory or regulatory authority; and provided further that there shall be
no indemnification of Directors, officers, or employees against expenses,
penalties, or other payments incurred in an administrative proceeding or action
instituted by an appropriate regulatory agency which proceeding or action
results in a final order assessing civil money penalties or requiring
affirmative action by an individual or individuals in the form of payments to
the Association.
Every person who may be indemnified under the provisions of this Article and
who has been wholly successful on the merits with respect to any Claim shall be
entitled to indemnification as of right. Except as provided in the preceding
sentence, any indemnification under this Article shall be at the sole
discretion of the Board of Directors and shall be made only if the Board of
Directors or the Executive Committee acting by a quorum consisting of Directors
who are not parties to such Claim shall find or if independent legal counsel
(who may be the regular counsel of the Association) selected by the Board of
Directors or Executive Committee whether or not a disinterested quorum exists
shall render their opinion that in view of all of the circumstances then
surrounding the Claim, such indemnification is equitable and in the best
interests of the Association. Among the circumstances to be taken into
consideration in arriving at such a finding or opinion is the existence or
non-existence of a contract of insurance or indemnity under which the
Association would be wholly or partially reimbursed for such indemnification,
but the existence or non-existence of such insurance is not the sole
circumstance to be considered nor shall it be wholly determinative of whether
such indemnification shall be made. In addition to such finding or opinion, no
indemnification under this Article shall be made unless the Board of Directors
or the Executive Committee acting by a quorum consisting of Directors who are
not parties to such Claim shall find or if independent legal counsel (who may
be the regular counsel of the Association) selected by the Board of Directors
or Executive Committee whether or not a disinterested quorum exists shall
render their opinion that the Directors, officer or employee acted in good
faith in what he reasonably believed to be the best interests of the
Association or such other corporation and further in the case of any criminal
action or proceeding, that the Director, officer or employee reasonably
believed his conduct to be lawful. Determination of any Claim by judgment
adverse to a Director, officer or employee by settlement with or without Court
approval or conviction upon a plea of guilty or of nolo contendere or its
equivalent shall not create a presumption that a Director, officer or employee
failed to meet the standards of conduct set forth in this Article. Expenses
incurred with respect to any Claim may be advanced by the Association prior to
the final disposition thereof upon receipt of an undertaking satisfactory to
the Association by or on behalf of the recipient to repay such amount unless it
is ultimately determined that he is entitled to indemnification under this
Article.
The rights of indemnification provided in this Article shall be in addition to
any rights to which any Director, officer or employee may otherwise be entitled
by contract or as a matter of law. Every person who shall act as a Director,
officer or employee of this Association shall be conclusively presumed to be
doing so in reliance upon the right of indemnification provided for in this
Article.
9
<PAGE> 10
ELEVENTH. These Articles of Association may be amended at any regular or
special meeting of the shareholders by the affirmative vote of the holders of a
majority of the stock of this Association, unless the vote of the holders of a
greater amount of stock is required by law, and in that case by the vote of the
holders of such greater amount. The Association's Board of Directors may
propose one or more amendments to the Articles of Association for submission to
the shareholders. .
10
<PAGE> 11
EXHIBIT 2
A COPY OF THE CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et
seq., as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio,
(Charter No. 16235) is a National Banking Association formed under the laws of
the United States and is authorized thereunder to transact the business of
banking on the date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
24th day of March, 1999.
/s/ John D. Hawke, Jr.
---------------------------
Comptroller of the Currency
<PAGE> 12
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et
seq., as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio,
(Charter No. 16235) was granted, under the hand and seal of the Comptroller,
the right to act in all fiduciary capacities authorized under the provisions of
the Act of Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a,
and that the authority so granted remains in full force and effect on the date
of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
24th day of March, 1999.
/s/ John D. Hawke, Jr.
----------------------------
Comptroller of the Currency
<PAGE> 13
EXHIBIT 4
A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE
BANK ONE TRUST COMPANY, National Association.
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the shareholders of
the Bank for the election of Directors and for the transaction of such business
as may properly come before the meeting shall be held at its main office, or
other convenient place duly authorized by the Board of Directors, on the same
day upon which any regular or special Board meeting is held from and including
the first Monday of January to, and including, the fourth Monday of February of
each year, or on the next succeeding banking day, if the day fixed falls on a
legal holiday. If from any cause, an election of Directors is not made on the
day fixed for the regular meeting of the shareholders or, in the event of a
legal holiday, on the next succeeding banking day, the Board of Directors shall
order the election to be held on some subsequent day, as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting. Notice of such
annual meeting shall be given by or under the direction of the Secretary, or
such other officer as may be designated by the Chief Executive Officer, by
first-class mail, postage prepaid, to all shareholders of record of the Bank at
their respective addresses as shown upon the books of the Bank mailed not less
than ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of the
Bank may be called at any time by the Board of Directors or by any three or
more shareholders owning, in the aggregate, not less than ten percent of the
stock of the Bank. Notice of any special meeting of the shareholders called by
the Board of Directors, stating the time, place and purpose of the meeting,
shall be given by or under the direction of the Secretary, or such other
officer as is designated by the Chief Executive Officer, by first-class mail,
postage prepaid, to all shareholders of record of the Bank at their respective
addresses as shown upon the books of the Bank mailed not less than ten days
prior to the date fixed for such meeting. Any special meeting of shareholders
shall be conducted and its proceedings recorded in the manner prescribed in
these By-Laws for annual meetings of shareholders.
<PAGE> 14
SECTION 1.03. SECRETARY OF MEETING OF SHAREHOLDERS. The Board of Directors may
designate a person to be the secretary of the meeting of shareholders. In the
absence of a presiding officer, as designated by these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as secretary
of the meeting. The secretary of the meeting of shareholders shall cause the
returns made by the judges of election and other proceedings to be recorded in
the minute books of the Bank. The presiding officer shall notify the
Directors-elect of their election and to meet forthwith for the organization of
the new Board of Directors. The minutes of the meeting shall be signed by the
presiding officer and the secretary designated for the meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many as
three shareholders to be judges of the election, who shall hold and conduct the
same, and who shall, after the election has been held, notify, in writing over
their signatures, the secretary of the meeting of shareholders of the result
thereof and the names of the Directors elected; provided, however, that upon
failure for any reason of any judge or judges of election, so appointed by the
Directors, to serve, the presiding officer of the meeting shall appoint other
shareholders or their proxies to fill the vacancies. The judges of election, at
the request of the chairman of the meeting, shall act as tellers of any other
vote by ballot taken at such meeting, and shall notify, in writing over their
signature, the secretary of the Board of Directors of the result thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall
have the right to vote the number of shares of record in such shareholder's
name for as many persons as there are Directors to be elected, or to cumulate
such shares as provided by Federal Law. In deciding all other questions at
meetings of shareholders, each shareholder shall be entitled to one vote on
each share of stock of record in such shareholder's name. Shareholders may vote
by proxy duly authorized in writing. All proxies used at the annual meeting
shall be secured for that meeting only, or any adjournment thereof, and shall
be dated, if not dated by the shareholder, as of the date of the receipt
thereof. No officer or employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to
time until a quorum is obtained. A majority of the votes cast shall decide
every question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.01. QUALIFICATIONS. Each Director shall have the qualifications
prescribed by law. No person elected as a Director may exercise any of the
powers of office until such Director has taken the oath of such office.
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year
or until their successors are elected and qualified. Any vacancy in the Board
shall be filled by appointment of the remaining Directors, and any Director so
appointed shall hold office until the next election.
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding officer of the annual meeting. If at the time fixed for
such meeting there is no quorum present, the Directors in attendance may
adjourn from time to time until a quorum is obtained. A majority
14
<PAGE> 15
of the number of Directors elected by the shareholders shall constitute a
quorum for the transaction of business.
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief Executive Officer, or President may
fix. Whenever a quorum is not present, the Directors in attendance shall
adjourn the meeting to a time not later than the date fixed by the By-Laws for
the next succeeding regular meeting of the Board. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors
shall be held at the call of the Chairman of the Board, Chief Executive
Officer, or President, or at the request of two or more Directors. Any special
meeting may be held at such place and at such time as may be fixed in the call.
Written or oral notice shall be given to each Director not later than the day
next preceding the day on which the special meeting is to be held, which notice
may be waived in writing. The presence of a Director at any meeting of the
Board of Directors shall be deemed a waiver of notice thereof by such Director.
Whenever a quorum is not present, the Directors in attendance shall adjourn the
special meeting from day to day until a quorum is obtained. Members of the
Board of Directors may participate in such meetings through use of conference
telephone or similar communications equipment, so long as all members
participating in such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank
may be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall receive
such fees for attendance at Board and Board committee meetings and such fees
for service as a Director, irrespective of meeting attendance, as from time to
time are fixed by resolution of the Board; provided, however, that payment
hereunder shall not be made to a Director for meetings attended and/or Board
service which are not for the Bank's sole
15
<PAGE> 16
benefit and which are concurrent and duplicative with meetings attended or
Board service for an affiliate of the Bank for which the Director receives
payment; and provided further that fees hereunder shall not be paid in the case
of any Director in the regular employment of the Bank or of one of its
affiliates. Each member of the Board of Directors, whether or not such Director
is in the regular employment of the Bank or of one of its affiliates, shall be
reimbursed for travel expenses incident to attendance at Board and Board
committee meetings.
SECTION 2.08. EXECUTIVE COMMITTEE. There may be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all the powers of the Board that
may lawfully be delegated. The Executive Committee shall consist of at least
three Board members, one of whom shall be the Chairman of the Board, Chief
Executive Officer or the President. The other members of the Executive
Committee shall be appointed by the Chairman of the Board, the Chief Executive
Officer, or the President, with the approval of the Board, and who shall
continue as members of the Executive Committee until their successors are
appointed, provided, however, that any member of the Executive Committee may be
removed by the Board upon a majority vote thereof at any regular or special
meeting of the Board. The Chairman, Chief Executive Officer, or President shall
fill any vacancy in the Executive Committee by the appointment of another
Director, subject to the approval of the Board of Directors. The Executive
Committee shall meet at the call of the Chairman, Chief Executive Officer, or
President or any two members thereof at such time or times and place as may be
designated. In the event of the absence of any member or members of the
Executive Committee, the presiding member may appoint a member or members of
the Board to fill the place or places of such absent member or members to serve
during such absence. Two members of the Executive Committee shall constitute a
quorum. When neither the Chairman of the Board, the Chief Executive Officer,
nor President are present, the Executive Committee shall appoint a presiding
officer. The Executive Committee shall report its proceedings and the action
taken by it to the Board of Directors.
SECTION 2.09. OTHER COMMITTEES. The Board of Directors may appoint such special
committees from time to time as are in its judgment necessary in the interest
of the Bank.
ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF.
(a) The executive officers of the Bank shall include a Chairman of the Board,
Chief Executive Officer, President, Chief Financial Officer, Secretary,
Security Officer, and may include one or more Senior Managing Directors or
Managing Directors. The Chairman of the Board, Chief Executive Officer,
President, any Senior Managing Director, any Managing Director, Chief Financial
Officer, Secretary, and Security Officer shall be elected by the Board. The
Chairman of the Board, Chief Executive Officer, and the President shall be
elected by the Board from their own number. Such officers as the Board shall
elect from their own number shall hold office from the date of their election
as officers until the organization meeting of the Board of Directors following
the next annual meeting of shareholders, provided, however, that such officers
may be relieved of their duties at any time by action of the Board of
Directors, in which event all the powers incident to their office shall
immediately terminate. The Chairman of the Board, Chief Executive Officer, or
the President shall preside at all meetings of shareholders and meetings of the
Board of Directors.
(b) The management staff of the Bank shall include officers elected by the
Board, officers appointed by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director,
the Chief Financial Officer, and such other persons in the employment of the
Bank who, pursuant to authorization by a duly authorized officer of the Bank,
perform management functions and have management responsibilities. Any two or
more offices may be held by the same person except that no person shall hold
the office
16
<PAGE> 17
of Chairman of the Board, Chief Executive Officer and/or President and at the
same time also hold the office of Secretary.
(c) Except as provided in the case of the elected officers who are members of
the Board, all officers and employees, whether elected or appointed, shall hold
office at the pleasure of the Board. Except as otherwise limited by law or
these By-Laws, the Board assigns to the Chairman of the Board, the Chief
Executive Officer, the President, any Senior Managing Director, any Managing
Director, the Chief Financial Officer, and/or each of their respective
designees the authority to control all personnel, including elected and
appointed officers and employees of the Bank, to employ or direct the
employment of such officers and employees as he or she may deem necessary,
including the fixing of salaries and the dismissal of such officers and
employees at pleasure, and to define and prescribe the duties and
responsibilities of all officers and employees of the Bank, subject to such
further limitations and directions as he or she may from time to time deem
appropriate.
(d) The Chairman of the Board, the Chief Executive Officer, the President, any
Senior Managing Director, any Managing Director, the Chief Financial Officer,
and any other officer of the Bank, to the extent that such officer is
authorized in writing by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, or
the Chief Financial Officer may appoint persons other than officers who are in
employment of the Bank to serve in management positions and in connection
therewith, the appointing officer may assign such title, salary,
responsibilities and functions as are deemed appropriate, provided, however,
that nothing contained herein shall be construed as placing any limitation on
the authority of the Chairman of the Board, the Chief Executive Officer, the
President, any Senior Managing Director, any Managing Director, or the Chief
Financial Officer as provided in this and other sections of these By-Laws.
(e) The Senior Managing Directors and the Managing Directors of the Bank shall
have general and active authority over the management of the business of the
Bank, shall see that all orders and resolutions of the Board of Directors are
carried into effect, and shall do or cause to be done all things necessary or
proper to carry on the business of the Bank in accordance with provisions of
applicable law and regulations. Each Senior Managing Director and Managing
Director shall perform all duties incident to his or her office and such other
and further duties, as may from time to time be required by the Chief Executive
Officer, the President, the Board of Directors, or the shareholders. The
specification of authority in these By-Laws wherever and to whomever granted
shall not be construed to limit in any manner the general powers of delegation
granted to a Senior Managing Director or a Managing Director in conducting the
business of the Bank. In the absence of a Senior Managing Director or a
Managing Director, such officer as is designated by the Senior Managing
Director or the Managing Director shall be vested with all the powers and
perform all the duties of the Senior Managing Director or the Managing Director
as defined by these By-Laws.
17
<PAGE> 18
(f) Each Managing Director who is assigned oversight of one or more trust
service offices shall appoint a management committee known as the Investment
Management and Trust Committee consisting of the Managing Director of the trust
service offices and at least three other members who shall be capable and
experienced officers of the Bank appointed from time to time by the Managing
Director and who shall continue as members of the Investment Management and
Trust Committee until their successors are appointed, provided, however, that
any member of the Investment Management and Trust Committee may be removed by
the Managing Director as provided in this and other sections of these By-Laws.
The Managing Director shall fill any vacancy in the Investment Management and
Trust Committee by the appointment of another capable and experienced officer
of the Bank. Each Investment Management and Trust Committee shall meet at such
date, time and place as the Managing Director shall fix. In the event of the
absence of any member or members of the Investment Management and Trust
Committee, the Managing Director may, in his or her discretion, appoint another
officer of the Bank to fill the place or places of such absent member or
members to serve during such absence. A majority of each Investment Management
and Trust Committee shall constitute a quorum. Each Investment Management and
Trust Committee shall carry out the policies of the Bank, as adopted by the
Board of Directors, which shall be formulated and executed in accordance with
State and Federal Law, Regulations of the Comptroller of the Currency, and
sound fiduciary principles. In carrying out the policies of the Bank, each
Investment Management and Trust Committee is hereby authorized to establish
management teams whose duties and responsibilities shall be specifically set
forth in the policies of the Bank. Each such management team shall report such
proceedings and the actions taken thereby to the Investment Management and
Trust Committee. Each Managing Director shall then report such proceedings and
the actions taken thereby to the Board of Directors.
SECTION 3.02. POWERS AND DUTIES OF MANAGEMENT STAFF. Pursuant to the fiduciary
powers granted to this Bank under the provisions of Federal Law and Regulations
of the Comptroller of the Currency, the Chairman of the Board, the Chief
Executive Officer, the President, the Senior Managing Directors, the Managing
Directors, the Chief Financial Officer, and those officers so designated and
authorized by the Chairman of the Board, the Chief Executive Officer, the
President, the Senior Managing Directors, the Managing Directors, or the Chief
Financial Officer are authorized for and on behalf of the Bank, and to the
extent permitted by law, to make loans and discounts; to purchase or acquire
drafts, notes, stocks, bonds, and other securities for investment of funds held
by the Bank; to execute and purchase acceptances; to appoint, empower and
direct all necessary agents and attorneys; to sign and give any notice required
to be given; to demand payment and/or to declare due for any default any debt
or obligation due or payable to the Bank upon demand or authorized to be
declared due; to foreclose any mortgages; to exercise any option, privilege or
election to forfeit, terminate, extend or renew any lease; to authorize and
direct any proceedings for the collection of any money or for the enforcement
of any right or obligation; to adjust, settle and compromise all claims of
every kind and description in favor of or against the Bank, and to give
receipts, releases and discharges therefor; to borrow money and in connection
therewith to make, execute and deliver notes, bonds or other evidences of
indebtedness; to pledge or hypothecate any securities or any stocks, bonds,
notes or any property real or personal held or owned by the Bank, or to
rediscount any notes or other obligations held or owned by the Bank, whenever
in his or her judgment it is reasonably necessary for the operation of the
Bank; and in furtherance of and in addition to the powers hereinabove set forth
to do all such acts and to take all such proceedings as in his or her judgment
are necessary and incidental to the operation of the Bank.
SECTION 3.03. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control of
the records of the Bank and, subject to the direction of the Chief Executive
Officer, shall undertake other duties and functions usually performed by a
corporate secretary. Other officers may be designated by the Secretary as
Assistant Secretary to perform the duties of the Secretary.
18
<PAGE> 19
SECTION 3.04. EXECUTION OF DOCUMENTS. Any member of the Bank's management staff
or any employee of the Bank designated as an officer on the Bank's payroll
system is hereby authorized for and on behalf of the Bank to sell, assign,
lease, mortgage, transfer, deliver and convey any real or personal property,
including shares of stock, bonds, notes, certificates of indebtedness
(including the assignment and redemption of registered United States
obligations) and all other forms of intangible property now or hereafter owned
by or standing in the name of the Bank, or its nominee, or held by the Bank as
collateral security, or standing in the name of the Bank, or its nominee, in
any fiduciary capacity or in the name of any principal for whom this Bank may
now or hereafter be acting under a power of attorney or as agent, and to
execute and deliver such partial releases from any discharges or assignments of
mortgages and assignments or surrender of insurance policies, deeds, contracts,
assignments or other papers or documents as may be appropriate in the
circumstances now or hereafter held by the Bank in its own name, in a fiduciary
capacity, or owned by any principal for whom this Bank may now or hereafter be
acting under a power of attorney or as agent; provided, however, that, when
necessary, the signature of any such person shall be attested or witnessed in
each case by another officer of the Bank.
Any member of the Bank's management staff or any employee of the Bank
designated as an officer on the Bank's payroll system is hereby authorized for
and on behalf of the Bank to execute any indemnity and fidelity bonds, trust
agreements, proxies or other papers or documents of like or different character
necessary, desirable or incidental to the appointment of the Bank in any
fiduciary capacity, the conduct of its business in any fiduciary capacity, or
the conduct of its other banking business; to sign and issue checks, drafts,
orders for the payment of money and certificates of deposit; to sign and
endorse bills of exchange, to sign and countersign foreign and domestic letters
of credit, to receive and receipt for payments of principal, interest,
dividends, rents, fees and payments of every kind and description paid to the
Bank, to sign receipts for money or other property acquired by or entrusted to
the Bank, to guarantee the genuineness of signatures on assignments of stocks,
bonds or other securities, to sign certifications of checks, to endorse and
deliver checks, drafts, warrants, bills, notes, certificates of deposit and
acceptances in all business transactions of the Bank; also to foreclose any
mortgage, to execute and deliver receipts for any money or property; also to
sign stock certificates for and on behalf of this Bank as transfer agent or
registrar, and to authenticate bonds, debentures, land or lease trust
certificates or other forms of security issued pursuant to any indenture under
which this Bank now or hereafter is acting as trustee or in any other fiduciary
capacity; to execute and deliver various forms of documents or agreements
necessary to effectuate certain investment strategies for various fiduciary or
custody customers of the Bank, including, without limitation, exchange funds,
options, both listed and over-the-counter, commodities trading, futures
trading, hedge funds, limited partnerships, venture capital funds, swap or
collar transactions and other similar investment vehicles for which the Bank
now or in the future may deem appropriate for investment of fiduciary customers
or in which non-fiduciary customers may direct investment by the Bank.
19
<PAGE> 20
Without limitation on the foregoing, the Chief Executive Officer, Chairman of
the Board, or President of the Bank shall have the authority from time to time
to appoint officers of the Bank as Vice President for the sole purpose of
executing releases or other documents incidental to the conduct of the Bank's
business in any fiduciary capacity where required by state law or the governing
document. In addition, other persons in the employment of the Bank or its
affiliates may be authorized by the Chief Executive Officer, Chairman of the
Board, President, Senior Managing Directors, Managing Directors, or Chief
Financial Officer to perform acts and to execute the documents described in the
paragraph above, subject, however, to such limitations and conditions as are
contained in the authorization given to such person.
SECTION 3.05. PERFORMANCE BOND. All officers and employees of the Bank shall be
bonded for the honest and faithful performance of their duties for such amount
as may be prescribed by the Board of Directors.
ARTICLE IV
STOCKS AND STOCK CERTIFICATES
SECTION 4.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
evidenced by certificates which shall bear the signature of the Chairman of the
Board, the Chief Executive Officer, or the President (which signature may be
engraved, printed or impressed), and shall be signed manually by the Secretary,
or any other officer appointed by the Chief Executive Officer for that purpose.
In case any such officer who has signed or whose facsimile signature has been
placed upon such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Bank with the same effect as if
such officer had not ceased to be such at the time of its issue. Each such
certificate shall bear the corporate seal of the Bank, shall recite on its face
that stock represented thereby is transferable only upon the books of the Bank
when properly endorsed and shall recite such other information as is required
by law and deemed appropriate by the Board. The corporate seal may be facsimile
engraved or printed.
SECTION 4.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank shall
be transferable only upon the stock transfer books of the Bank and, except as
hereinafter provided, no transfer shall be made or new certificates issued
except upon the surrender for cancellation of the certificate or certificates
previously issued therefor. In the case of the loss, theft, or destruction of
any certificate, a new certificate may be issued in place of such certificate
upon the furnishing of an affidavit setting forth the circumstances of such
loss, theft, or destruction and indemnity satisfactory to the Chairman of the
Board, the Chief Executive Officer, or the President. The Board of Directors or
the Chairman of the Board, Chief Executive Officer, or the President may
authorize the issuance of a new certificate therefor without the furnishing of
indemnity. Stock transfer books, in which all transfers of stock shall be
recorded, shall be provided. The stock transfer books may be closed for a
reasonable period and under such conditions as the Board of Directors may at
20
<PAGE> 21
any time determine, for any meeting of shareholders, the payment of dividends
or any other lawful purpose. In lieu of closing the transfer books, the Board
of Directors may, in its discretion, fix a record date and hour constituting a
reasonable period prior to the day designated for the holding of any meeting of
the shareholders or the day appointed for the payment of any dividend, or for
any other purpose at the time as of which shareholders entitled to notice of
and to vote at any such meeting or to receive such dividend or to be treated as
shareholders for such other purpose shall be determined, and only shareholders
of record at such time shall be entitled to notice of or to vote at such
meeting or to receive such dividends or to be treated as shareholders for such
other purpose.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.01. SEAL. The seal of the Bank shall be circular in form with "SEAL"
in the center, and the name "BANK ONE TRUST COMPANY, National Association"
located clockwise around the upper half of the seal.
SECTION 5.02. MINUTE BOOK. The organization papers of this Bank, the Articles
of Association, the returns of judges of elections, the By-Laws and any
amendments thereto, the proceedings of all regular and special meetings of the
shareholders and of the Board of Directors, and reports of the committees of
the Board of Directors shall be recorded in the minute books of the Bank. The
minutes of each such meeting shall be signed by the presiding officer and
attested by the secretary of the meeting.
SECTION 5.03. CORPORATE POWERS. The corporate existence of the Bank shall
continue until terminated in accordance with the laws of the United States. The
purpose of the Bank shall be to carry on the general business of a commercial
bank trust department and to engage in such activities as are necessary,
incident, or related to such business. The Articles of Association of the Bank
shall not be amended, or any other provision added elsewhere in the Articles
expanding the powers of the Bank, without the prior approval of the Comptroller
of the Currency.
SECTION 5.04. AMENDMENT OF BY-LAWS. The By-Laws may be amended, altered or
repealed, at any regular or special meeting of the Board of Directors, by a
vote of a majority of the Directors.
21
<PAGE> 22
<TABLE>
<S> <C>
As amended April 24, 1991 Section 3.01 (Officers and Management Staff)
Section 3.02 (Chief Executive Officer)
Section 3.03 (Powers and Duties of Officers and Management Staff)
Section 3.05 (Execution of Documents)
As amended January 27, 1995 Section 2.04 (Regular Meetings)
Section 2.05 (Special Meetings)
Section 3.01(f) (Officers and Management Staff)
Section 3.03(e) (Powers and Duties of Officers
and Management Staff)
Section 5.01 (Seal)
</TABLE>
Amended and restated in its entirety effective May 1, 1996
<TABLE>
<S> <C>
As amended August 1, 1996 Section 2.09 (Trust Examining Committee)
Section 2.10 (Other Committees)
As amended October 16, 1997 Section 3.01 (Officers and Management Staff)
Section 3.02 (Powers and Duties of Officers and
Management Staff)
Section 3.04 (Execution of Documents)
</TABLE>
As amended January 1, 1998 Section 1.01 (Annual Meeting)
22
<PAGE> 23
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
February 4, 2000
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an indenture between SCI SYSTEMS, INC.
and Bank One Trust Company, National Association, as Trustee, the undersigned,
in accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, hereby consents that the reports of examinations of the undersigned,
made by Federal or State authorities authorized to make such examinations, may
be furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
BY: /s/ Steven M. Wagner
--------------------------------
STEVEN M. WAGNER
DIRECTOR
<PAGE> 24
EXHIBIT 7
<TABLE>
<CAPTION>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/99 State #: 391581 FFIEC 032
Address: 100 Broad Street Vendor ID: D Cert #: 21377 Page RC-1
City, State Zip: Columbus, OH 43271 Transit #: 04400003
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
DOLLAR AMOUNTS IN THOUSANDS C300
----
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCON
----
a. Noninterest-bearing balances and currency and coin(1).................... 0081 123,692 1.a
b. Interest-bearing balances(2)............................................. 0071 17,687 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)................ 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)............. 1773 5,860 2.b
3. Federal funds sold and securities purchased under agreements to
resell...................................................................... 1350 364,813
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCON
----
RC-C)....................................................................... 2122 58,020 4.a
b. LESS: Allowance for loan and lease losses................................ 3123 10 4.b
c. LESS: Allocated transfer risk reserve.................................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCON
----
reserve (item 4.a minus 4.b and 4.c)........................................ 2125 58,010 4.d
5. Trading assets (from Schedule RD-D)......................................... 3545 0 5.
6. Premises and fixed assets (including capitalized leases).................... 2145 22,547 6.
7. Other real estate owned (from Schedule RC-M)................................ 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).............................................. 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding................ 2155 0 9.
10. Intangible assets (from Schedule RC-M)...................................... 2143 27,151 10.
11. Other assets (from Schedule RC-F)........................................... 2160 141,759 11.
12. Total assets (sum of items 1 through 11).................................... 2170 761,519 12.
</TABLE>
- ---------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 25
<TABLE>
<CAPTION>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/99 State #: 391581 FFIEC 032
Address: 100 Broad Street Vendor ID: D Cert #: 21377 Page RC-2
City, State Zip: Columbus, OH 43271 Transit #: 04400003
SCHEDULE RC-CONTINUED
DOLLAR AMOUNTS IN
THOUSANDS
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits: RCON
a. In domestic offices (sum of totals of columns A and C ----
from Schedule RC-E, part 1)............................................. 2200 589,846 13.a
(1) Noninterest-bearing(1).............................................. 6631 517,140 13.a1
(2) Interest-bearing.......................... 6636 72,706 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)......................................
(1) Noninterest bearing.................................................
(2) Interest-bearing....................................................
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 0 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 0 15.a
b. Trading Liabilities(from Sechedule RC-D)................................ RCFD 3548 0 15.b
16. Other borrowed money: RCON
----
a. With original maturity of one year or less.............................. 2332 0 16.a
b. With original maturity of more than one year........................... A547 0 16.b
c. With original maturity of more than three years ........................ A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding.................... 2920 0 18.
19. Subordinated notes and debentures.......................................... 3200 0 19.
20. Other liabilities (from Schedule RC-G)..................................... 2930 63,244 20.
21. Total liabilities (sum of items 13 through 20)............................. 2948 653,090 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.............................. 3838 0 23.
24. Common stock............................................................... 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock) 3839 45,157 25.
26. a. Undivided profits and capital reserves.................................. 3632 62,458 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities............................................................. 8434 14 26.b
c. Accumulated net gains (losses) on cash flow hedges...................... 4336 0 26.c
27. Cumulative foreign currency translation adjustments........................
28. Total equity capital (sum of items 23 through 27).......................... 3210 108,429 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)...................................... 3300 761,519 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement
below that best describes the most comprehensive level of
auditing work performed for the bank by independent external ------------------
auditors as of any date Number
during 1996 ....................RCFD 6724 ................... N/A M1
------------------
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm
which submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated
holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external
auditors (may be required by the state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ---------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
