<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 18, 1996.
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------
STEWART ENTERPRISES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
LOUISIANA 110 VETERANS MEMORIAL 72-0693290
BOULEVARD (I.R.S. EMPLOYER
(STATE OR OTHER METAIRIE, LOUISIANA 70005 IDENTIFICATION NUMBER)
JURISDICTION OF (504) 837-5880
INCORPORATION OR
ORGANIZATION) (ADDRESS, INCLUDING ZIP
CODE, AND TELEPHONE
NUMBER, INCLUDING AREA
CODE, OF REGISTRANT'S
PRINCIPAL EXECUTIVE
OFFICES)
JOSEPH P. HENICAN, III
CHIEF EXECUTIVE OFFICER AND
VICE CHAIRMAN OF THE BOARD
STEWART ENTERPRISES, INC.
P.O. BOX 19925
NEW ORLEANS, LOUISIANA 70179
(504) 837-5880
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
L.R. MCMILLAN, II R. JOEL SWANSON
JONES, WALKER, WAECHTER, POITEVENT, BAKER & BOTTS, L.L.P.
CARRERE & DENEGRE, L.L.P. ONE SHELL PLAZA
201 ST. CHARLES AVENUE 910 LOUISIANA
NEW ORLEANS, LOUISIANA 70170-5100 HOUSTON, TEXAS 77002-4995
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 being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, 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 effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH AMOUNT OFFERING PRICE AGGREGATE AMOUNT OF
CLASS OF SECURITIES TO BE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED DEBT SECURITY(/1/) PRICE(/1/) FEE
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<S> <C> <C> <C> <C>
Debt Securities(/2/).... $300,000,000 100% $300,000,000 $90,909
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</TABLE>
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(1)Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933.
(2)There are being registered hereunder an indeterminate amount of Debt
Securities. The amount being registered represents the principal amount of any
Debt Securities issued at their principal amounts and the issue price rather
than the principal amount of any Debt Securities issued at an original issue
discount. In no event will the aggregate initial offering price of all Debt
Securities issued from time to time pursuant to this Registration Statement
exceed US $300,000,000, or its equivalent if some or all of the securities are
denominated in one or more foreign currencies or currency units.
---------------
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.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+ INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+ REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+ SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR +
+ MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+ BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+ THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+ SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+ UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS +
+ OF ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED OCTOBER 18, 1996.
PROSPECTUS
- ----------
$300,000,000
STEWART ENTERPRISES, INC.
DEBT SECURITIES
------------
Stewart Enterprises, Inc. (the "Company") may offer from time to time its
debt securities ("Debt Securities") consisting of debentures, notes and/or
other evidences of indebtedness in one or more series at an aggregate initial
offering price not to exceed $300,000,000 (or the U.S. dollar equivalent
thereof if any Debt Securities are denominated in a foreign currency or
currency unit), which may be offered, separately or together, in one or more
series, in amounts, at prices and on terms to be determined at the time of sale
and set forth in an accompanying supplement to this Prospectus (a "Prospectus
Supplement"). The Debt Securities will rank pari passu with all other
unsubordinated and unsecured indebtedness of the Company. The Company will
receive all of the net proceeds from the sale of the Debt Securities.
The Debt Securities may be denominated in U.S. dollars or in another currency
or currency unit (such as the European Currency Unit), and the principal of
(and premium, if any, on) or interest on the Debt Securities may be payable in
U.S. dollars or such foreign currency or currency unit. The Prospectus
Supplement relating to each series of Debt Securities offered pursuant to this
Prospectus will set forth the specific terms of such series, including the
specific designation, aggregate principal amount, currency or currency unit in
which the principal and any premium or interest may be payable, authorized
denominations, maturity, any premium, any interest rate (which may be fixed or
variable), any interest payment dates, any optional or mandatory redemption
terms, and any other terms of such series. The Prospectus Supplement will also
contain information, where applicable, about certain United States federal
income tax considerations relating to the Debt Securities covered by the
Prospectus Supplement.
The Company may sell the Debt Securities directly to one or more purchasers
or to or through underwriters, dealers or agents. If any underwriters, dealers
or agents are involved in the sale of the Debt Securities, the accompanying
Prospectus Supplement will set forth their names, the principal amounts, if
any, to be purchased by underwriters, any applicable fees, commissions or
discounts, and the net proceeds to the Company.
This Prospectus may not be used to consummate sales of Debt Securities unless
accompanied by a Prospectus Supplement.
------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------
The date of this Prospectus is October , 1996.
<PAGE>
IN CONNECTION WITH AN OFFERING OF DEBT SECURITIES, THE UNDERWRITERS, IF ANY,
MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET
PRICES OF THE DEBT SECURITIES AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE
PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON ANY
SECURITIES EXCHANGE ON WHICH SUCH DEBT SECURITIES MAY BE LISTED, IN THE OVER-
THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and, in accordance therewith, files
reports, proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy statements and
other information may be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the following regional offices of the Commission: 7 World
Trade Center, New York, New York 10048 and 500 West Madison Street, Suite
1400, Chicago, Illinois 60661. Copies of such material may be obtained from
the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The Commission maintains an
Internet Web site that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the
Commission (http://www.sec.gov). Such reports, proxy statements and other
information may also be inspected at the National Association of Securities
Dealers, Inc. at 1735 K Street, N.W., Washington, D.C. 20006.
The Company has filed with the Commission a registration statement on Form
S-3 (together with all amendments and exhibits, the "Registration Statement")
under the Securities Act of 1933 with respect to the Debt Securities offered
by this Prospectus. This Prospectus does not contain all the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information with respect to the Company and the Debt Securities offered
hereunder, reference is made to the Registration Statement. Statements
contained in this Prospectus as to the contents of any contract or other
document are not necessarily complete and, where such contract or other
document is an exhibit to the Registration Statement, each such statement is
qualified in all respects by the provisions of such exhibit, to which
reference is hereby made for a full statement of the provisions thereof.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission are hereby
incorporated by reference into this Prospectus (the Company's Exchange Act
file number is 0-19508): (i) the Company's Annual Report on Form 10-K for the
fiscal year ended October 31, 1995, filed January 5, 1996, (ii) the Company's
Quarterly Report on Form 10-Q for the quarter ended January 31, 1996, filed
March 18, 1996, and the Company's amendment on Form 10-Q/A to such Quarterly
Report, filed April 11, 1996; for the quarter ended April 30, 1996, filed June
14, 1996; and for the quarter ended July 31, 1996, filed September 13, 1996;
and (iii) the Company's Current Reports on Form 8-K, dated January 16, 1996,
filed January 17, 1996; dated March 7, 1996, filed March 7, 1996; and dated
March 20, 1996, filed March 21, 1996; dated June 11, 1996, filed June 11,
1996; dated June 27, 1996, filed July 25, 1996; dated September 9, 1996, filed
September 10, 1996; and dated September 30, 1996, filed October 9, 1996.
All reports and other documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
this Prospectus and prior to the termination of this offering shall be deemed
to be incorporated by reference herein and to be a part hereof from the date
of filing of such reports and documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
to the extent that a statement contained herein or in any other document
subsequently filed which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus has been delivered, upon written or oral request, a copy of any or
all of the documents incorporated herein by reference (other than exhibits to
such documents unless such exhibits are specifically incorporated by reference
into such documents). Requests should be directed to Stewart Enterprises,
Inc., Attention: Kenneth C. Budde, 110 Veterans Memorial Boulevard, Metairie,
Louisiana 70005, telephone (504) 837-5880.
2
<PAGE>
THE COMPANY
Stewart Enterprises, Inc. (the "Company") is the third largest provider of
products and services in the death care industry in North America. The Company
is a leader in the industry's movement toward consolidation, the integration
of funeral home and cemetery operations, the establishment of combined
facilities, and complete death care planning and delivery.
The Company's strategy is to build market share in its existing markets
through extensive marketing, the sale of prearranged products and services and
the development of new funeral homes, and to expand in existing and new
markets through selective acquisitions. In each market in which it wishes to
expand, the Company's strategy is to acquire one or more premier facilities to
serve as a centerpiece for a group or cluster of other properties that may be
acquired subsequently in the same metropolitan area. The Company considers a
funeral home or cemetery to be a "premier" facility if, when measured by such
factors as tradition, heritage, reputation, physical size, volume of business,
available inventory, name recognition, aesthetics and potential for
development or expansion, it is one of the most highly regarded facilities in
its market area. Where feasible, the Company enters markets with, or
subsequently develops, combined operations in which a funeral home is located
at and is operated in conjunction with a Company-owned cemetery. The continued
acquisition and development of combined operations is a key component of the
Company's expansion plan.
The Company is a leader in the industry trend toward prearranged funeral
planning. The Company believes that extensive marketing of death care
prearrangements assures a backlog of future business and builds current and
future market share. The Company markets funeral services as well as cemetery
property and merchandise on a prearranged basis through a staff of commission
sales counselors.
The Company believes that it is distinguishable from its competitors by the
quality of its funeral homes and cemeteries, the depth and experience of its
management team, its decentralized management structure, the quality and value
of its products and services, its expertise in the marketing and sale of death
care prearrangements, and the volume of services performed at its funeral
homes and cemeteries. The Company retains key managers of acquired companies
and gives them significant operational authority in order to assure the
continuation of high quality services and the maintenance of the acquired
firm's reputation and goodwill.
The Company is a Louisiana corporation, and the mailing address of its
executive offices is P. O. Box 19925, New Orleans, Louisiana 70179. Its
telephone number is (504) 837-5880.
3
<PAGE>
USE OF PROCEEDS
Unless otherwise described in the accompanying Prospectus Supplement, the
net proceeds from the sale of Debt Securities will be used by the Company for
general corporate purposes, which may include the repayment of outstanding
indebtedness, acquisitions, capital expenditures and working capital.
RATIO OF EARNINGS TO FIXED CHARGES
The Company's ratio of earnings to fixed charges was as follows for the
years and period indicated:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEARS ENDED OCTOBER 31, JULY 31,
-------------------------------------------------------------- -----------
1991 1992 1993 1994 1995 1996
---- ---- ---- ---- ---- -----------
<S> <C> <C> <C> <C> <C>
2.44 4.57 5.15 5.30 2.72(/1/) 4.17
</TABLE>
- --------
(1) Pretax income from continuing operations for fiscal 1995 includes a non-
recurring, non-cash charge of $17.3 million in connection with the vesting
of the Company's performance-based stock options. Excluding the charge,
the Company's ratio of earnings to fixed charges for fiscal 1995 would be
3.43.
For purposes of computing the ratio of earnings to fixed charges, earnings
consist of pretax income from continuing operations plus fixed charges
(excluding interest capitalized during the period). Fixed charges consist of
interest expense, capitalized interest, amortization of debt expense and
discount or premium relating to any indebtedness and the portion of rental
expense that management believes to be representative of the interest
component of rental expense.
DESCRIPTION OF DEBT SECURITIES
The following description of the Debt Securities sets forth certain general
terms and provisions of the Debt Securities to which any Prospectus Supplement
may relate ("Offered Debt Securities"). The particular terms of the Offered
Debt Securities and the extent to which such general provisions may apply will
be described in a Prospectus Supplement relating to such Offered Debt
Securities.
The Debt Securities will be issued under an Indenture dated as of October
, 1996 (the "Indenture"), between the Company and Citibank, N.A., as
trustee (the "Trustee"). The Indenture is filed as an exhibit to the
Registration Statement of which this Prospectus is a part. The statements
under this caption relating to the Debt Securities and the Indenture are
summaries only and do not purport to be complete. Such summaries make use of
terms defined in the Indenture, which terms are capitalized herein. Wherever
such terms are used herein or particular provisions of the Indenture are
referred to herein, such terms or provisions are incorporated by reference as
part of the statements made herein, and such statements are qualified in their
entirety by such reference. The italicized parenthetical references below
refer to the section numbers in the Indenture, unless otherwise indicated.
General. The Indenture does not limit the aggregate principal amount of Debt
Securities that can be issued thereunder and provides that Debt Securities may
be issued from time to time thereunder in one or more series, in each case in
such form and with such terms as are established for such series in or
pursuant to Board Resolutions or indentures supplemental to the Indenture.
(Sections 201 and 301) The aggregate initial offering price of Debt Securities
that may be offered and sold pursuant to this Prospectus, however, is limited
to $300,000,000, which is the amount of Debt Securities registered under the
Registration Statement of which this Prospectus is a part. All Debt Securities
will be unsecured obligations of the Company, will rank senior in priority to
any subordinated indebtedness of the Company, and will rank pari passu with
all other unsecured indebtedness of the Company.
4
<PAGE>
The Company is a holding company and conducts substantially all of its
business through its Subsidiaries. Accordingly, the ability of the Company to
meet its obligations under the Indenture and the Debt Securities will depend
primarily upon the earnings of its Subsidiaries and upon the receipt by the
Company of dividends or other payments from its Subsidiaries. None of the
Company's Subsidiaries is prohibited under the Indenture from entering into
agreements limiting its ability to make distributions to the Company. The
obligations of the Company under the Debt Securities will not be guaranteed by
any of the Subsidiaries of the Company. Any right of the Company to
participate in any distribution of the assets of its Subsidiaries upon the
liquidation, reorganization or insolvency thereof would be subject to the
prior claims of creditors (including trade creditors) and preferred
stockholders (if any) of such Subsidiaries, except to the extent the claims of
the Company itself as a creditor or preferred stockholder of its Subsidiaries
may be recognized. As a result, the Debt Securities will be structurally
subordinated to any indebtedness or preferred stock of the Company's
Subsidiaries. Except as described below, the Indenture does not limit the
amount of other indebtedness or securities that may be issued by the Company
or its Subsidiaries nor does it restrict transactions between the Company and
its affiliates, the payment of dividends and other distributions by the
Company to its stockholders, the making of investments by the Company or the
transfer of assets by the Company to its Subsidiaries.
Unless otherwise indicated in a Prospectus Supplement, the Debt Securities
will not benefit from any covenant or other provision that would afford
Holders of such Debt Securities special protection in the event of either a
change in control of the Company or a highly leveraged transaction involving
the Company, except for any such protection provided by the provisions
described below under "--Limitation on Liens" or "--Limitation on Sale/
Leaseback Transactions."
Reference is made to the Prospectus Supplement for the following terms of
the Offered Debt Securities: (i) the title and aggregate principal amount of
the Offered Debt Securities; (ii) the date or dates on which the Offered Debt
Securities will mature; (iii) the rate or rates (which may be fixed or
variable) per annum, if any, at which the Offered Debt Securities will bear
interest or the method of determining such rate or rates; (iv) the date or
dates from which such interest, if any, will accrue, the date or dates at
which such interest, if any, will be payable and the record date or dates for
the interest payable on any Offered Debt Securities on any interest payment
date; (v) the place or places at which and the manner in which the principal
of, or premium or interest on, the Offered Debt Securities will be payable and
the place or places at which such Offered Debt Securities may be surrendered
for transfer or registration; (vi) the price or prices (expressed as a
percentage of the aggregate principal amount thereof) at which the Offered
Debt Securities will be offered; (vii) the terms for redemption or early
payment, if any, including any mandatory or optional sinking fund or analogous
provision; (viii) whether such Offered Debt Securities will be issued in fully
registered form or in bearer form or any combination thereof; (ix) whether
such Offered Debt Securities will be issued in the form of one or more global
securities and whether such global securities are to be issuable in temporary
global form or permanent global form; (x) the denominations in which any
Offered Debt Securities will be issuable; (xi) if other than U.S. dollars, the
currency, currencies or currency unit or units in which such Offered Debt
Securities will be denominated and in which the principal of, and premium and
interest on, such Offered Debt Securities will be payable; (xii) whether, and
the terms and conditions on which, the Company or a Holder may elect that
payment of principal of, or premium or interest on, such Offered Debt
Securities is to be made in a currency or currencies or currency unit or units
other than that in which such Offered Debt Securities are denominated; (xiii)
if the amount of payments of principal of, or premium or interest on, the
Offered Debt Securities may be determined with reference to an index, the
manner in which such amounts shall be determined; (xiv) information with
respect to book-entry procedures, if any; and (xv) any other specific terms of
the Offered Debt Securities (which terms shall not be inconsistent with the
provisions of the Indenture). Reference is also made to the Prospectus
Supplement for information with respect to any additional covenants that may
be included in the terms of the Offered Debt Securities. (Section 301)
Offered Debt Securities may be sold at a discount (which may be substantial)
below their stated principal amount and may bear no interest or interest at a
rate which at the time of issuance is below market rates. Any material United
States federal income tax consequences and other special considerations
applicable thereto will be described in the Prospectus Supplement relating to
any such Offered Debt Securities.
5
<PAGE>
No service charge will be made for any registration of transfer or exchange
of the Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. (Section 305)
If any of the Offered Debt Securities are sold for any foreign currency or
currency unit or if the principal of, or premium or interest on, any of the
Offered Debt Securities is payable in any foreign currency or currency unit,
the restrictions, elections, tax consequences, specific terms and other
information with respect to such Offered Debt Securities and such foreign
currency or currency unit will be set forth in the Prospectus Supplement
relating thereto.
The Indenture and the Offered Debt Securities will be governed by and
construed in accordance with the laws of the State of New York. (Section 113)
Limitation on Liens. The Indenture provides that the Company and its
Subsidiaries will not issue, create, incur, assume or suffer to exist any Lien
securing Debt on any property or asset without making effective provision
whereby any and all Debt Securities of any series then or thereafter
outstanding will be secured by a Lien equally and ratably with (or, at the
Company's option, prior to) any and all obligations thereby secured for so
long as any such obligations shall be so secured. The foregoing restriction
will not, however, apply to the Company and its Subsidiaries with respect to:
Liens existing on the date of the Indenture (or provided for in after-acquired
property clauses under the terms of agreements existing on such date); Liens
on any property or other assets to secure Debt incurred for the purpose of (a)
financing all or any part of the consideration used to acquire such property
or other assets and incurred prior to, at the time of, or within 12 months
after, such acquisition or (b) financing all or any part of the cost of
construction, improvement, development or expansion of such property or other
assets including, without limitation, Liens to secure Debt incurred in
connection with the construction, installation or financing of pollution
control or abatement facilities or other forms of industrial revenue or
development bond financing, which Liens extend solely to the property which is
the subject thereof; Liens on any property or other assets existing at the
time of acquisition thereof by the Company or its Subsidiaries, including
acquisition through merger, consolidation or the purchase of property or other
assets, provided that such Liens do not extend to other property or assets of
the Company or its Subsidiaries; Liens resulting from a judgment or award
contested in good faith; Liens to secure Debt issued or guaranteed by the
United States or any state or any department, agency or instrumentality of the
United States or any state, which Liens extend solely to the property that is
the subject thereof; Liens upon receivables and other assets or properties and
the proceeds thereof that may be granted or arise in connection with the
transfer, securitization or factoring of some or all of the Company's and its
Subsidiaries' receivables; Liens that secure only Debt owing by a Subsidiary
to the Company or by the Company to a Subsidiary or by a Subsidiary to another
Subsidiary; Liens required by any contract or statute in order to permit the
Company or a Subsidiary to perform any contract or subcontract made by it with
or at the request of the United States, any State or any department, agency or
instrumentality of either; Liens arising out of pledges or deposits under
worker's compensation laws, unemployment insurance, old age pensions or other
social security or retirement benefits or similar legislation; Liens imposed
by law, such as carriers', warehousemen's, landlords', materialmen's,
repairmen's and mechanics' liens and other similar liens arising in the
ordinary course of business; certain Liens for taxes, assessments or
governmental charges or levies; and Liens to secure Debt incurred to extend,
refinance, renew, replace or refund (or successive extensions, refinancings,
renewals, replacements or refundings) of any Debt secured by any Lien referred
to in the foregoing clauses (i) through (xi) so long as the principal amount
of such Debt so secured is not increased. (Section 1005)
Notwithstanding the foregoing, the Company and its Subsidiaries may, without
equally and ratably securing the Debt Securities of any series, issue, assume
or guarantee Debt secured by Liens in addition to those permitted by the
foregoing paragraph and renew, extend or replace such Liens, provided that the
aggregate principal amount of Debt so secured by any such Lien plus any
Attributable Debt (as defined below) does not at any one time exceed 15% of
Consolidated Net Tangible Assets as shown on the balance sheet of the Company
as of the end of the most recent fiscal quarter prior to the incurrence of the
Debt for which a balance sheet is available.
6
<PAGE>
"Capitalized Lease Obligation" of any Person means any obligation that is
required to be classified and accounted for as a capital lease on a balance
sheet of such Person in accordance with generally accepted accounting
principles. (Section 101)
"Consolidated Net Tangible Assets" means the total amount of assets (less
applicable reserves and other properly deductible items) of the Company and
its Subsidiaries on a consolidated basis after deducting therefrom: (i) all
current liabilities (excluding any thereof which are by their terms extendable
or renewable at the option of the obligor thereon to a time more than twelve
months after the time as of which the amount thereof is being computed) and
(ii) all goodwill, trade names, trademarks, patents, unamortized debt discount
and other like intangible assets. (Section 101)
"Debt" means (without duplication), with respect to the Company and its
Subsidiaries, all obligations of the Company and its Subsidiaries, whether
evidenced by bonds, debentures, notes or other similar instruments, for
repayment of borrowed money, provided, that if the Debt is nonrecourse, the
amount of Debt shall be limited to the value of the assets securing the Debt,
all Capitalized Lease Obligations of the Company and its Subsidiaries, all
Debt of other Persons secured by a Lien on any asset of the Company or its
Subsidiaries, whether or not such Debt is assumed by the Company or its
Subsidiaries, and all Debt of other Persons guaranteed, directly or
indirectly, by the Company or its Subsidiaries to the extent of such
guarantee. (Section 101)
"Lien" means, with respect to any property or assets, any mortgage or deed
of trust, pledge, charge, security interest, assignment, encumbrance,
conditional sale or other title retention agreement; provided, however, that
Lien shall not include a trust established for the purpose of defeasing any
Debt pursuant to the terms evidencing or providing for the issuance of such
Debt if the assets of such trust are limited to cash and U.S. Government
Obligations. (Section 101)
"Senior Indebtedness" means Debt of the Company that ranks at least pari
passu with the Debt Securities. (Section 101)
"Subsidiary" of a Person means any corporation more than 50% of the
outstanding securities having ordinary voting power of which is owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries,
or by such Person and one or more of its Subsidiaries, or any partnership or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned. For the purposes
of this definition, securities or ownership interests "having ordinary voting
power" means securities or other equity interests that ordinarily have voting
power for the election of directors, or persons having management power with
respect to the Person, whether at all times or only so long as no senior class
of securities has such voting power by reason of any contingency. (Section
101)
Limitation on Sale/Leaseback Transactions. The Indenture provides that the
Company and its Subsidiaries will not enter into any Sale/Leaseback
Transaction with any Person (other than the Company and its Subsidiaries)
unless either: the Company and its Subsidiaries would be entitled to incur
Debt, in a principal amount equal to the Attributable Debt with respect to
such Sale/Leaseback Transaction, secured by a Lien on the property subject to
such Sale/Leaseback Transaction pursuant to the covenant described under "--
Limitation on Liens" above without equally and ratably securing the Debt
Securities pursuant to such covenant; after the date of the original issuance
of the Offered Debt Securities and within a period commencing six months prior
to the effective date of such Sale/Leaseback Transaction and ending six months
thereafter, the Company or its Subsidiaries has expended or will expend for
any property (including amounts expended for the acquisition thereof, and for
additions, alterations, improvements and repairs thereto) an amount equal to
all or a portion of the net proceeds received from such transaction and elects
to designate such amount as a credit against the application of the
restrictions set forth hereunder and under "--Limitation on Liens" to such
transaction (with any such amount not being so designated to be applied as set
forth in (iii) below); or the Company, during or immediately after the
expiration of the six months after the effective date of any such
Sale/Leaseback Transaction, applies to the voluntary defeasance or retirement
of the Debt Securities of any series or any of the Company's other Senior
Indebtedness
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an amount equal to the greater of the net proceeds of the sale or transfer of
the property leased in such transaction or the Attributable Debt as determined
by the Company in an officer's certificate delivered to the Trustee at the
time of entering into such transaction (in either case adjusted to reflect the
remaining term of the lease and any amount utilized by the Company or its
Subsidiaries as set forth in (ii) above), less an amount equal to the
principal amount of the Debt Securities of any series delivered within six
months after the date of such arrangement to the Trustee for retirement and
cancellation, excluding retirements of Debt Securities of any series or of any
Senior Indebtedness pursuant to mandatory sinking fund or mandatory prepayment
provisions or by payment at maturity. (Section 1006)
"Attributable Debt," when used in connection with a Sale/Leaseback
Transaction, means, at the time of determination, the then present value of
the total net amount of rent required to be paid under the lease in respect of
such Sale/Leaseback Transaction during the remaining term thereof (including
any period for which such lease has been extended) or until the earlier date
on which the lessee may terminate such lease upon payment of a penalty or a
lump-sum termination payment (in which case the total net rent shall include
such penalty or termination payment), computed by discounting from the
respective due dates to such dates such total net amount of rent at the actual
interest factor included in such rent or implicit in the terms of the
applicable Sale/Leaseback Transaction, as determined in good faith by the
Company. For purposes of the foregoing definition, rent shall not include
amounts required to be paid by the lessee, whether or not designated as rent
or additional rent, on account of or contingent upon the amount of sales or
deliveries, maintenance and repair, insurance, taxes, assessments, water rates
and similar charges. (Section 101)
"Sale/Leaseback Transaction" means any arrangement with any Person providing
for the leasing by the Company or its Subsidiaries, for a period of more than
three years of any property or assets, which property or assets have been or
are to be sold or transferred by the Company or its Subsidiaries to such
Person in contemplation of such leasing. (Section 101)
Events of Default. Unless otherwise provided in a Prospectus Supplement with
respect to any series of Debt Securities, the following shall constitute
Events of Default under the Indenture with respect to the Debt Securities of
such series issued under such Indenture: (i) failure to pay principal of, or
premium, if any, on, any Debt Security of such series when due at final
maturity; (ii) failure to pay any interim principal payment or any interest on
any Debt Security of such series when due, and continuance of such default for
a period of 30 days; (iii) failure to deposit any mandatory sinking fund
payment or analogous obligation, when due, in respect of the Debt Securities
of such series, and continuance of such default for a period of 30 days; (iv)
failure to observe or perform any other covenant of the Company in the
Indenture (other than a covenant included in the Indenture for the benefit of
a series of Debt Securities other than such series), continued for a period of
60 days after written notice of such failure as provided in the Indenture; (v)
certain events of bankruptcy, insolvency or reorganization; (vi) failure to
pay at final maturity, or upon the declaration of acceleration of payment of,
Debt for borrowed money of the Company or any Subsidiary of the Company (other
than a failure to pay being contested in good faith by the Company or its
Subsidiaries with respect to Debt consisting of an obligation to pay all or
part of the acquisition consideration of an acquired business or asset) of $10
million or more (whether the Debt now exists or is hereafter created) as a
result of the occurrence of one or more events of default as defined in any
mortgages, indentures or instruments under which such Debt may have been
issued or by which such Debt may have been secured, and the failure to pay is
not cured or the acceleration is not rescinded, annulled or cured, in any case
prior to the expiration of 30 days after the date the failure to pay or
acceleration occurred; and (vii) any other Event of Default as may be
specified with respect to Debt Securities of such series. (Section 501)
If an Event of Default (except for an Event of Default described in clause
(v) above) with respect to any outstanding series of Debt Securities occurs
and is continuing, either the Trustee or the Holders of at least 25% in
principal amount of the outstanding Debt Securities of such series may declare
the unpaid principal amount (or, if the Debt Securities of that series are
discounted Debt Securities, such portion of the principal amount as may be
specified in the terms of that series) of all the Debt Securities of the
applicable series and the interest, if any, accrued thereon to be due and
payable immediately. If an Event of Default with respect to Debt Securities
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of any series at any time outstanding described in clause (v) above occurs and
is continuing, then the principal amount of all the Debt Securities of such
series will be immediately due and payable without any act on the part of the
Trustee or any Holder. At any time after a declaration or occurrence of
acceleration has been made, but before a judgment or decree based on
acceleration has been obtained, the Holders of a majority in principal amount
of the outstanding Debt Securities of such series may, under certain
circumstances, rescind and annul such acceleration and its consequences;
provided that no such rescission or annulment shall extend to or otherwise
affect any subsequent default or impair any right consequent thereon. (Section
502) Depending on the terms of other indebtedness of the Company outstanding
from time to time, an Event of Default under the Indenture may give rise to
cross defaults on such other indebtedness of the Company.
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a default (defined below) in respect of any series of Debt
Securities, give to the Holders of the Debt Securities of such series notice
of all uncured and unwaived defaults known to it; provided, however, that,
except in the case of a default in the payment of the principal of (or
premium, if any) or any interest on, or any sinking fund installment with
respect to, any Debt Securities of such series, the Trustee will be protected
in withholding such notice if it in good faith determines that the withholding
of such notice is in the interest of the Holders of the Debt Securities of
such series; and provided, further, that such notice shall not be given until
at least 30 days after the occurrence of a default in the performance, or
breach, of any covenant or warranty of the Company under such Indenture other
than for the payment of the principal of (or premium, if any) or any interest
on, or any sinking fund installment with respect to, any Debt Securities of
such series. For the purpose of this provision, "default" with respect to Debt
Securities of any series means any event which is, or after notice or lapse of
time, or both, would become, an Event of Default with respect to the Debt
Securities of such series. (Section 602)
The Holders of a majority in principal amount of the outstanding Debt
Securities of any series (or, in certain cases, all outstanding Debt
Securities under the Indenture) 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 or exercising any trust or power
conferred on the Trustee with respect to the Debt Securities of such series
(or of all outstanding Debt Securities under the Indenture). (Section 511) The
Indenture provides that in case an Event of Default shall occur and be
continuing, the Trustee shall exercise such of its rights and powers under the
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs. (Section 601) Subject to such provisions, the Trustee
will be under no obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the Holders of the Debt
Securities unless they shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction. (Section 603)
The Holders of a majority in principal amount of the outstanding Debt
Securities of any series (or, in certain cases, all Debt Securities
outstanding under the Indenture) may, on behalf of the Holders of all Debt
Securities of such series (or of all Debt Securities outstanding under the
Indenture), waive any past default under the Indenture, except a default in
the payment of the principal of (or premium, if any) or interest on any Debt
Security or in respect of a provision which under the applicable Indenture
cannot be modified or amended without the consent of the Holder of each
outstanding Debt Security affected. (Section 512) The Holders of a majority in
principal amount of the outstanding Debt Securities affected thereby may, on
behalf of the Holders of all such Debt Securities, waive compliance by the
Company with certain restrictive provisions of the Indenture. (Section 1008)
The Company is required to furnish to the Trustee annually a statement as to
the performance by the Company of certain of its obligations under each
Indenture and as to any default in such performance. (Section 1007)
Modification of the Indenture. Modifications and amendments of the Indenture
may be made by the Company and the Trustee with the consent of the Holders of
a majority in principal amount of the outstanding Debt Securities under the
Indenture affected thereby; provided, however, that no such modification or
amendment
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may, without the consent of the Holder of each outstanding Debt Security
affected thereby (i) change the Stated Maturity date of the principal of, or
any installment of principal of or interest on, any Debt Security; (ii) reduce
the principal amount of, or the premium (if any) or interest on, any Debt
Security; (iii) change the place or currency, currencies, or currency unit or
units of payment of principal of, or premium (if any) or interest on, any Debt
Security; (iv) alter the method of computation of any amount payable on
redemption, repayment or purchase, if any; (v) impair the right to institute
suit for the enforcement of any payment on or with respect to any Debt
Security; or (vi) reduce the percentage in principal amount of outstanding
Debt Securities the consent of the Holders of which is required for
modification or amendment of the Indenture or for waiver of compliance with
certain provisions of the Indenture or for waiver of certain defaults.
(Section 902)
The Indenture provides that the Company and the Trustee may, without the
consent of any Holders of Debt Securities, enter into supplemental indentures
for the purposes, among other things, of (i) adding to the Company's covenants
or adding additional Events of Default for the protection of the Holders of
the Debt Securities, (ii) establishing the form or terms of Debt Securities of
any series, (iii) evidencing the acceptance of appointment by a successor
trustee, (iv) securing Debt Securities of any series, (v) evidencing the
assumption by a successor Person of the obligations of the Company or (vi)
curing ambiguities or inconsistencies in the Indenture, provided that such
action to cure ambiguities or inconsistencies shall not adversely affect the
interests of the Holders of the Debt Securities. (Section 901)
Limitations on Mergers, Consolidations and Sale of Assets. The Indenture
provides that the Company will not consolidate with or merge into any Person,
or sell, lease, convey, transfer or otherwise dispose of all or substantially
all of its assets to any Person, unless: (i) the Person formed by or surviving
such consolidation or merger (if other than the Company), or to which such
sale, lease, conveyance, transfer or other disposition shall be made
(collectively, the "Successor"), is a corporation, partnership or trust
organized and existing under the laws of the United States or any State
thereof or the District of Columbia and the Successor assumes by supplemental
indenture in a form satisfactory to the Trustee all of the obligations of the
Company under the Indenture and the Debt Securities; (ii) immediately after
giving effect to such transaction and treating any Debt that becomes an
obligation of the Company or its Subsidiaries as a result thereof as having
been incurred by the Company or its Subsidiaries at the time of such
transaction, no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have occurred and be
continuing; (iii) if, as a result of such transaction, property or assets of
the Company or its Subsidiaries would become subject to a Lien prohibited by
the provisions described under "-- Limitation on Liens," the Company or the
Successor shall have secured the Debt Securities as required by that covenant;
and (iv) the Company shall have delivered to the Trustee an Officer's
Certificate and Opinion of Counsel, each stating that such merger,
consolidation, sale or conveyance and such supplemental indenture, if any,
complies with the Indenture. (Section 801) Upon any such consolidation, merger
or asset transfer, the Successor shall be substituted for the Company and,
thereafter (except in the case of a lease) the Company shall be relieved of
all obligations and covenants under the Indenture and the Debt Securities.
(Section 802)
Discharge and Defeasance. The Company may terminate its obligations under
the Indenture, other than its obligation to pay the principal of (and premium,
if any) and interest on the Debt Securities of any series and certain other
obligations, if it (i) irrevocably deposits or causes to be irrevocably
deposited with the Trustee as trust funds cash or U.S. Government Obligations,
or a combination thereof, maturing as to principal and interest sufficient to
pay the principal of, any premium on, any interest on, and any mandatory
sinking fund payments in respect of, all outstanding Debt Securities of such
series on the Stated Maturity of such payments or on any Redemption Date, (ii)
delivers to the Trustee an Opinion of Counsel to the effect that the Holders
of Debt Securities of such series will not recognize income, gain or loss for
United States federal income tax purposes as a result of such deposit,
satisfaction and discharge and will be subject to United States federal income
tax on the same amount and in the same manner and at the same time as would
have been the case if such deposit, satisfaction and discharge had not
occurred and (iii) complies with any additional conditions specified to be
applicable with respect to the covenant defeasance of Debt Securities of such
series. (Section 401)
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The terms of any series of Debt Securities may also provide for legal
defeasance. In such case, if the Company (i) irrevocably deposits or causes to
be irrevocably deposited cash or U.S. Government Obligations or a combination
thereof as described above, (ii) delivers to the Trustee the Opinion of
Counsel as described above, except that the opinion must state that it is
based on a ruling by the Internal Revenue Service or other change since the
date of the Indenture under applicable Federal income tax law, (iii) makes a
request to the Trustee to be discharged from its obligations on the Debt
Securities of such series and (iv) complies with any additional conditions
specified to be applicable with respect to legal defeasance of Debt Securities
of such series, then the Company shall be deemed to have paid and discharged
the entire indebtedness on all the outstanding Debt Securities of such series
and the obligations of the Company under the Indenture and the Debt Securities
of such series to pay the principal of (and premium, if any) and interest on
the Debt Securities of such series shall cease, terminate and be completely
discharged, and the Holders thereof shall thereafter be entitled only to
payment out of the cash or U.S. Government Obligations deposited with the
Trustee as aforesaid, unless the Company's obligations are revived and
reinstated because the Trustee is unable to apply such trust fund by reason of
any legal proceeding, order or judgment. (Sections 403 and 404)
Notwithstanding the foregoing, no discharge or defeasance described above
shall affect the following obligations to or rights of the Holders of any
series of Debt Securities: (i) rights of registration of transfer and exchange
of Debt Securities of such series; (ii) rights of substitution of mutilated,
defaced, destroyed, lost or stolen Debt Securities of such series, if
applicable; (iii) rights of Holders of Debt Securities of such series to
receive payments of principal thereof and premium and interest, if any,
thereon when due and to receive mandatory sinking fund payments, if any,
thereon when due from the trust funds held by the Trustee; (iv) the rights,
obligations, duties and immunities of the Trustee; (v) the rights of holders
of Debt Securities of such series as beneficiaries with respect to property
deposited with the Trustee payable to all or any of them; and (vi) the
obligations of the Company to maintain an office or agency in respect of Debt
Securities of such series.
"U.S. Government Obligations" is defined in the Indenture as direct
noncallable obligations of, or noncallable obligations the payment of
principal of and interest on which is guaranteed by, the United States of
America, or to the payment of which obligations or guarantees the full faith
and credit of the United States of America is pledged, or beneficial interests
in a trust the corpus of which consists exclusively of money or such
obligations or a combination thereof. (Section 101)
Form, Exchange, Registration and Transfer. Debt Securities are issuable in
definitive form as Registered Debt Securities, as Bearer Debt Securities or
both. (Section 301) Reference is made to the Prospectus Supplement for the
terms relating to the form, exchange, registration and transfer of Bearer Debt
Securities (which may be more or less restrictive than terms described herein
for Registered Debt Securities) and Debt Securities issuable in temporary or
permanent global forms.
Registered Debt Securities of any series will be exchangeable for other
Registered Debt Securities of the same series and of a like aggregate
principal amount and tenor of different authorized denominations. (Section
305)
Registered Debt Securities may be presented for registration of transfer
(with the form of transfer endorsed thereon duly executed), at the office of
the Security Registrar or at the office of any transfer agent designated by
the Company for such purpose with respect to any series of Debt Securities and
referred to in an applicable Prospectus Supplement, without service charge and
upon payment of any taxes and other governmental charges as described in the
Indenture. Such transfer or exchange will be effected upon the Security
Registrar in accordance with the terms of the Indenture. The Company has
appointed the Trustee as Security Registrar. (Section 305) If a Prospectus
Supplement refers to any transfer agents (in addition to the Security
Registrar) initially designated by the Company with respect to any series of
Debt Securities, the Company may at any time rescind the designation of any
such transfer agent or approve a change in the location through which any such
transfer agent acts, except that if Debt Securities of a series are issuable
solely as Registered Debt Securities, the Company will be required to maintain
a transfer agent in each Place of Payment for such series. The Company may at
any time designate additional transfer agents with respect to any series of
Debt Securities. (Section 1002)
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In the event of any redemption in part, the Company shall not be required to
(i) issue, register the transfer of or exchange Registered Debt Securities of
any series during a period beginning at the opening of business 15 days prior
to the mailing of a notice of redemption and ending on the close of business
on the day of mailing of the relevant notice of redemption; or (ii) register
the transfer of or exchange any Registered Debt Security, or portion thereof,
called for redemption, except the unredeemed portion of any Registered Debt
Security being redeemed in part. (Section 305)
Payment and Paying Agents. Unless otherwise indicated in an applicable
Prospectus Supplement, payment of principal of and any premium and interest on
Registered Debt Securities will be made in the designated currency or currency
unit at the office of such Paying Agent or Paying Agents as the Company may
designate from time to time, except that, at the option of the Company,
payment of any interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
Unless otherwise indicated in an applicable Prospectus Supplement, payment of
any installment of interest on Registered Debt Securities will be made to the
Person in whose name such Registered Debt Security is registered at the close
of business on the Regular Record Date for such interest. (Section 307)
Unless otherwise indicated in an applicable Prospectus Supplement, the
Corporate Trust Office of the Trustee in New York, New York, will be
designated as a Paying Agent for the Company for payments with respect to Debt
Securities which are issuable solely as Registered Debt Securities. The
Company may at any time designate additional Paying Agents or rescind the
designation of any Paying Agent or approve a change in the office through
which any Paying Agent acts, except that the Company will be required to
maintain a Paying Agent in each Place of Payment for such series. (Section
1002)
All moneys paid by the Company to a Paying Agent for the payment of
principal of and any premium or interest on any Debt Security which remain
unclaimed at the end of two years after such principal, premium or interest
shall have become due and payable will (subject to applicable escheat laws) be
repaid to the Company, and the Holder of such Debt Security or any coupon will
thereafter look only to the Company for payment thereof. (Section 1003)
Global Securities. The Offered Debt Securities of a series may be issued in
whole or in part in the form of one or more global securities ("Global
Securities") that will be issued to and registered in the name of the
depositary (the "Depositary") identified in the Prospectus Supplement, or its
nominee, relating to such series. Global Securities may be issued in either
registered or bearer form and in either temporary or permanent form. Unless
and until a Global Security is exchanged in whole or in part for the
individual Debt Securities represented thereby, such Global Security may not
be transferred except as a whole by the Depositary to its nominee or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
or nominee of such successor Depositary. (Section 204)
The specific terms of the depositary arrangement with respect to a series of
Offered Debt Securities will be described in the Prospectus Supplement
relating to such series. The Company anticipates that the following provisions
will generally apply to depositary arrangements.
Upon the issuance of a Global Security, the Depositary or its nominee will
credit, on its book-entry registration and transfer system, the respective
principal amounts of the individual Debt Securities represented by such Global
Security to the accounts of persons that have accounts with the Depositary.
Such accounts shall be designated by the dealers, underwriters or agents with
respect to such Debt Securities or by the Company if such Debt Securities are
offered and sold directly by the Company. Ownership of beneficial interests in
a Global Security will be limited to persons that have accounts with the
Depositary ("Participants") or persons that may hold interests through
Participants. Ownership of beneficial interests in such Global Security will
be shown on, and the transfer of that ownership will be effected only through,
records maintained by the Depositary or its nominee (with respect to interests
of Participants) and the records of Participants (with respect to interests of
persons other than Participants). The laws of some states require that certain
purchasers of securities take physical delivery of such securities in
definitive form. Such limits and such laws may impair the ability to transfer
beneficial interests in a Global Security.
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So long as the Depositary or its nominee is the registered owner of a Global
Security, such registered owner will be considered the sole owner or holder of
the Debt Securities represented by such Global Security for all purposes under
the Indenture. Except as provided below, owners of beneficial interests in a
Global Security will not be entitled to have any of the individual Debt
Securities represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of any such Debt
Securities in definitive form and will not be considered the owners or holders
thereof under the Indenture.
Payments of principal of and premium, if any, and interest, if any, on Debt
Securities represented by a Global Security registered in the name of the
Depositary or its nominee will be made to the Depositary or its nominee, as
the case may be, as the registered owner of the Global Security representing
such Debt Securities. None of the Company, the Trustee, any Paying Agent or
the Security Registrar for such Debt Securities will have any responsibility
or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests of the Global Security for such Debt
Securities or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
The Company expects that the Depositary or its nominee, immediately upon
receipt of any payment of principal, premium or interest in respect of a
Global Security, will credit Participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of such Global Security as shown on the records of the Depositary or its
nominee. The Company also expects that payments by Participants to owners of
beneficial interests in such Global Security held through such Participants
will be governed by standing instructions and customary practices, as is now
the case with securities held for the accounts of customers in bearer form or
registered in "street name." Such payments will be the sole responsibility of
such Participants.
The Company has no control over the practices of the Depositary or the
Participants and there can be no assurance that these practices will not be
changed. If the Depositary for a series of Debt Securities is at any time
unwilling, unable or ineligible to continue as depositary and a successor
depositary is not appointed by the Company by the effective date of the
resignation of the Depositary, the Company will issue individual Debt
Securities of such series in exchange for the Global Security representing
such series of Debt Securities. In addition, the Company may at any time and
in its sole discretion, subject to any limitations described in the Prospectus
Supplement relating to such Debt Securities, determine not to have any Debt
Securities of a series represented by one or more Global Securities and, in
such event, will issue individual Debt Securities of such series in exchange
for the Global Security representing such series of Debt Securities.
Furthermore, if there shall have occurred and be continuing an Event of
Default, or an event which, with the giving of notice or lapse of time, or
both, would constitute an Event of Default, with respect to any series of Debt
Securities represented by a Global Security, such Global Security shall be
exchangeable for individual Debt Securities of such series. In any such
instance, an owner of a beneficial interest in a Global Security will be
entitled to physical delivery of individual Debt Securities of the series
represented by such Global Security equal in principal amount to such
beneficial interest and to have such Debt Securities registered in its name.
Individual Debt Securities of such series so issued will be issued in
denominations, unless otherwise specified by the Company, of $1,000 and
integral multiples thereof.
Meetings. The Indenture contains provisions for convening meetings of the
Holders of Debt Securities of a series. (Section 1301) A meeting may be called
at any time by the Trustee, and also, upon request, by the Company or the
Holders of at least 10% in principal amount of the Outstanding Debt Securities
of such series, in any such case upon notice given as described under "--
Notices" below. (Section 1302) Except for any consent that must be given by
the Holder of each Outstanding Debt Security affected thereby, as described
under "--Modification of the Indenture" above, any resolution presented at a
meeting or adjourned meeting at which a quorum is present may be adopted by
the affirmative vote of the Holders of a majority in principal amount of the
Outstanding Debt Securities of that series; provided, however, that except for
any consent that must be given by the Holder of each Outstanding Debt Security
affected thereby, as described under "--Modification of the Indenture" above,
any resolution with respect to any request, demand, authorization, direction,
notice, consent,
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waiver or other action that 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 Debt Securities of a series, may be adopted at a meeting or
adjourned meeting duly reconvened at which a quorum is present by the
affirmative vote of the Holders of such specified percentage in principal
amount of the Outstanding Debt Securities of that series. Subject to the
proviso set forth above, any resolution passed or decision taken at any
meeting of Holders of Debt Securities of any series duly held in accordance
with the Indenture will be binding on all Holders of Debt Securities of that
series and any related coupons. The quorum at any meeting called to adopt a
resolution, and at any reconvened meeting, will be Persons holding or
representing a majority in principal amount of the Outstanding Debt Securities
of a series. (Section 1304)
Notices. Notices to Holders of Registered Debt Securities will be given by
mail to the addresses of such Holders as they appear in the Security Register.
(Section 107)
The Trustee. The Indenture contains certain limitations on the right of the
Trustee, as a creditor of the Company, to obtain payment of claims in certain
cases and to realize on certain property received with respect to any such
claims, as security or otherwise. (Section 613) The Trustee is permitted to
engage in other transactions, except that if it acquires any conflicting
interest (as defined), it must eliminate such conflict or resign. (Section
608)
The Trustee may make loans to the Company and its Subsidiaries and
affiliates from time to time in the ordinary course of business and at
prevailing interest rates. In addition, the Trustee may from time to time
serve as a depositary of funds of, and perform other services for, the Company
and its Subsidiaries and affiliates.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities directly to one or more purchasers
or to or through underwriters, dealers or agents. Any such underwriters,
dealers or agents involved in the offer and sale of Offered Debt Securities
will be named in the Prospectus Supplement relating thereto. The Prospectus
Supplement with respect to the Offered Debt Securities will set forth the
terms of the offering of the Offered Debt Securities, including the purchase
price of the Offered Debt Securities and the proceeds to the Company from such
sale, any underwriting discounts and other items constituting underwriters'
compensation, any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers and any securities
exchanges on which the Offered Debt Securities may be listed.
The distribution of the Debt Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, or
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Prospectus Supplement
will describe the method of distribution of the Offered Debt Securities.
If underwriters are used in the sale, the Debt Securities will be acquired
by the underwriters for their own account and may be resold from time to time
in one or more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of sale. The
Debt Securities may be offered to the public either through underwriting
syndicates represented by one or more managing underwriters or directly by one
or more of such firms. If an underwriting syndicate is used, the managing
underwriter or underwriters will be set forth on the cover of the Prospectus
Supplement. Unless otherwise set forth in the Prospectus Supplement, the
obligations of the underwriters to purchase the offered Debt Securities will
be subject to certain conditions precedent and the underwriters will be
obligated to purchase all the Offered Debt Securities if any are purchased.
Any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
If a dealer is used in an offering of Offered Debt Securities, the Company
will sell such Offered Debt Securities to the dealer, as principal. The dealer
may then resell such Offered Debt Securities to the public at
14
<PAGE>
varying prices to be determined by such dealer at the time of sale. The terms
of the transaction will be set forth in the Prospectus Supplement relating
thereto.
Any agent involved in the offer or sale of the Offered Debt Securities in
respect of which this Prospectus is delivered will be named, and any
commissions payable by the Company to such agent will be set forth (or the
method by which such commissions may be determined), in the Prospectus
Supplement. Unless otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a best efforts basis for the period of its
appointment.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers by certain specified
institutions to purchase Offered Debt Securities from the Company at the
public offering price set forth in the Prospectus Supplement pursuant to
delayed delivery contracts providing for payment and delivery on a specified
date in the future. Such contracts will be subject only to those conditions
set forth in the Prospectus Supplement and the Prospectus Supplement will set
forth the commission payable by the Company for solicitation of such
contracts.
Dealers and agents named in a Prospectus Supplement may be deemed to be
underwriters (within the meaning of the Securities Act of 1933) of the Offered
Debt Securities. Underwriters, dealers and agents may be entitled under
agreements entered into with the Company to indemnification by the Company
against certain civil liabilities, including liabilities under the Securities
Act of 1933, or to contribution with respect to payments which the
underwriters, dealers or agents may be required to make in respect thereof.
Underwriters, dealers and agents may be customers of, engage in transactions
with, or perform services for the Company in the ordinary course of business.
There can be no assurance that a secondary market will be created for any of
the Offered Debt Securities or, if such a market is created, that it will
continue.
LEGAL MATTERS
The validity of the Debt Securities will be passed upon for the Company by
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., New Orleans,
Louisiana. Certain legal matters will be passed upon for any underwriters,
agents or dealers by Baker & Botts, L.L.P., Houston, Texas.
EXPERTS
The consolidated balance sheets of the Company as of October 31, 1994 and
1995 and the related consolidated statements of earnings, shareholders' equity
and cash flows for each of the three years in the period ended October 31,
1995, and the financial statement schedule incorporated by reference in this
Registration Statement, have been audited by Coopers & Lybrand L.L.P.,
independent accountants, as stated in their reports with respect thereto, and
are incorporated by reference herein in reliance upon the authority of such
firm as experts in accounting and auditing.
The consolidated balance sheet of "Societe Financiere Bourgie (1991) Ltee"
as of December 31, 1995 and the related consolidated statements of income,
retained earnings and changes in financial position for the year then ended
incorporated by reference in this Registration Statement from the Company's
Current Report on Form 8-K, dated September 30, 1996 and filed October 9,
1996, have been audited by Grou, La Salle + Associes, independent accountants,
as stated in their report with respect thereto, and are incorporated by
reference herein in reliance upon the authority of such firm as experts in
accounting and auditing.
15
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFERING MADE HEREBY AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER, DEALER OR AGENT. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY STATE IN WHICH SUCH OFFER
OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION.
------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information...................................................... 2
Documents Incorporated by Reference........................................ 2
The Company................................................................ 3
Use of Proceeds............................................................ 4
Ratio of Earnings to Fixed Charges......................................... 4
Description of Debt Securities............................................. 4
Plan of Distribution....................................................... 14
Legal Matters.............................................................. 15
Experts.................................................................... 15
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
$300,000,000
STEWART
ENTERPRISES, INC.
DEBT SECURITIES
------------------
PROSPECTUS
------------------
October , 1996
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated fees and expenses payable by the Company in connection with
the issuance and distribution of the Debt Securities registered hereunder are
as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............ $ 90,909
Printing costs................................................. 15,000
Legal fees and expenses........................................ 90,000
Accounting fees and expenses................................... 50,000
Blue Sky fees and expenses..................................... 20,000
Trustee's and Registrar's fees................................. 15,000
Rating agencies' fees.......................................... 205,000
---------
Total.......................................................... $ 485,909
=========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 83 of the Louisiana Business Corporation Law gives Louisiana
corporations broad powers to indemnify their present and former directors and
officers and those of affiliated corporations against expenses incurred in the
defense of any lawsuit to which they are made parties by reason of being or
having been such directors or officers; subject to specific conditions and
exclusions gives a director or officer who successfully defends an action the
right to be so indemnified; and authorizes Louisiana corporations to buy
directors' and officers' liability insurance. Such indemnification is not
exclusive of any other rights to which those indemnified may be entitled under
any by-law, agreement, authorization of shareholders or otherwise.
The Company's By-laws make mandatory the indemnification of directors and
officers permitted by the Louisiana Business Corporation Law. The standard to
be applied in evaluating any claim for indemnification (excluding claims for
expenses incurred in connection with the successful defense of any proceeding
or matter therein for which indemnification is mandatory without reference to
any such standard) is whether the claimant acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation. With respect to any criminal action or proceeding, the standard
is that the claimant had no reasonable cause to believe the conduct was
unlawful. No indemnification is permitted in respect of any claim, issue or
matter as to which a director or officer shall have been adjudged by a court
of competent jurisdiction to be liable for willful or intentional misconduct
or to have obtained an improper personal benefit, unless, and only to the
extent that the court shall determine upon application that, in view of all
the circumstances of the case, he is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
The Company has in effect a directors' and officers' liability insurance
policy that provides for indemnification of its officers and directors against
losses arising from claims asserted against them in their capacities as
officers and directors, subject to limitations and conditions set forth in
such policy.
The Company has entered into indemnity agreements with its directors and
executive officers, pursuant to which the Company has agreed under certain
circumstances to purchase and maintain directors' and officers' liability
insurance, unless such insurance is not reasonably available or, in the
reasonable judgment of the Board of Directors, there is insufficient benefit
to the Company from such insurance. The agreements also provide that the
Company will indemnify the director and executive officer against any costs
and expenses, judgments, settlements and fines incurred in connection with any
claim involving him by reason of his position as a director or officer that
are in excess of the coverage provided by any such insurance, provided that he
meets certain standards of conduct.
II-1
<PAGE>
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
*1.1 --Form of Underwriting Agreement.
*1.2 --Form of Distribution Agreement.
4 --Form of Indenture.
5 --Opinion of Jones, Walker, Waechter, Poitevent, Carrere & Denegre,
L.L.P.
12 --Computation of ratio of earnings to fixed charges.
23.1 --Consent of Coopers & Lybrand L.L.P.
23.2 --Consent of Grou, La Salle + Associes.
23.3 --Consent of Jones, Walker, Waechter, Poitevent, Carrere & Denegre,
L.L.P. (included in Exhibit 5).
24 --Power of Attorney (included in the signature pages to this
Registration Statement).
25 --Statement of Eligibility of Trustee on Form T-1.
99 --Agreement dated September 20, 1996 by and between the Company and
NationsBank of Texas, N.A.
</TABLE>
- --------
* To be filed as an exhibit on a Form 8-K as permitted by Item 601 of
Regulation S-K.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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 this 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% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or
any material change to such information in this registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference
in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-2
<PAGE>
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
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 Act
and will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the 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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New Orleans, State of Louisiana, on October 18,
1996.
STEWART ENTERPRISES, INC.
/s/ Joseph P. Henican, III
By __________________________________
Joseph P. Henican, III
Chief Executive Officer and Vice
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
immediately below constitutes and appoints Frank B. Stewart, Jr., Joseph P.
Henican, III, William E. Rowe and Ronald H. Patron, or any one of them, his
true and lawful attorney-in-fact and agent, with full power of substitution,
for him and in his name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this
Registration Statement, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorney-in-
fact and agent or his substitute or substitutes may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank B. Stewart, Jr. Chairman of the Board October 18, 1996
____________________________________
Frank B. Stewart, Jr.
/s/ Joseph P. Henican, III Chief Executive Officer and October 18, 1996
____________________________________ Vice Chairman of the Board
Joseph P. Henican, III (Principal Executive
Officer)
/s/ William E. Rowe President, Chief Operating October 18, 1996
____________________________________ Officer and a Director
William E. Rowe
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Ronald H. Patron Chief Financial Officer, October 18, 1996
____________________________________ President-Corporate
Ronald H. Patron Division, Executive Vice
President and a Director
(Principal Financial
Officer)
/s/ Kenneth C. Budde Senior Vice President- October 18, 1996
____________________________________ Finance, Secretary and
Kenneth C. Budde Treasurer
(Principal Accounting
Officer)
/s/ Darwin C. Fenner Director October 18, 1996
____________________________________
Darwin C. Fenner
/s/ Michael O. Read Director October 18, 1996
____________________________________
Michael O. Read
/s/ James W. McFarland Director October 18, 1996
____________________________________
James W. McFarland
/s/ John P. Laborde Director October 18, 1996
____________________________________
John P. Laborde
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
*1.1 --Form of Underwriting Agreement.
*1.2 --Form of Distribution Agreement.
4 --Form of Indenture.
5 --Opinion of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P.
12 --Computation of ratio of earnings to fixed charges.
23.1 --Consent of Coopers & Lybrand L.L.P.
23.2 --Consent of Grou, La Salle + Associes.
23.3 --Consent of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P. (included in Exhibit 5).
24 --Power of Attorney (included in the signature pages to this Registration Statement).
25 --Statement of Eligibility of Trustee on Form T-1.
99 --Agreement dated September 20, 1996 by and between the Company and NationsBank of Texas, N.A.
</TABLE>
- --------
* To be filed as an exhibit on a Form 8-K as permitted by Item 601 of
Regulation S-K.
<PAGE>
Exhibit 4.1
================================================================================
STEWART ENTERPRISES, INC.
AND
CITIBANK, N.A.,
AS TRUSTEE
________________
INDENTURE
DATED AS OF
OCTOBER ___, 1996
DEBT SECURITIES
================================================================================
<PAGE>
STEWART ENTERPRISES, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF OCTOBER ___, 1996
------------------
<TABLE>
<CAPTION>
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
----------- ---------
<S> <C> <C>
(S) 310 (a)(1)........................................... 609
(a)(2)........................................... 609
(a)(3)........................................... Not Applicable
(a)(4)........................................... Not Applicable
(b).............................................. 608, 610
(S) 311 (a).............................................. 613
(b).............................................. 613
(c).............................................. Not Applicable
(S) 312 (a).............................................. 701, 702(a)
(b).............................................. 702(b)
(c).............................................. 702(c)
(S) 313 (a).............................................. 703(a)
(b).............................................. 703(b)
(c).............................................. 703(c)
(d).............................................. 703(d)
(S) 314 (a).............................................. 704, 1007
(b).............................................. Not Applicable
(c)(1)........................................... 103
(c)(2)........................................... 103
(c)(3)........................................... Not Applicable
(d).............................................. Not Applicable
(e).............................................. 103
(S) 315 (a).............................................. 601(a)
(b).............................................. 602
(c).............................................. 601(b)
(d).............................................. 601(c)
(d)(1)........................................... 601(c)(1)
(d)(2)........................................... 601(c)(2)
(d)(3)........................................... 601(c)(3)
(e).............................................. 513
(S) 316 (a)(1)(A)........................................ 502, 511
(a)(1)(B)........................................ 512
(a)(2)........................................... Not Applicable
(a)(last sentence)............................... 101
(b).............................................. 508
(c).............................................. 105
(S) 317 (a)(1)........................................... 503
(a)(2)........................................... 504
(b).............................................. 1003
(S) 318 (a).............................................. 108
</TABLE>
_____________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
-----------------
PARTIES..............................................................1
RECITALS OF THE COMPANY..............................................1
ARTICLE ONE
Definitions And Other Provisions
Of General Application
<TABLE>
<CAPTION>
<S> <C>
SECTION 101. Definitions.............................................1
Act..............................................................2
Additional Amounts...............................................2
Affiliate........................................................2
Attributable Debt................................................2
Authenticating Agent.............................................3
Authorized Newspaper.............................................3
Bearer Security..................................................3
Board of Directors...............................................3
Board Resolution.................................................3
Book-Entry Security..............................................3
Business Day.....................................................3
CEDEL or CEDEL S.A...............................................3
Certification Date...............................................3
Commission.......................................................4
Common Depositary................................................4
Company..........................................................4
Company Request and Company Order................................4
Consolidated Net Tangible Assets.................................4
Conversion Event.................................................4
Corporate Trust Office...........................................4
coupon...........................................................4
Debt.............................................................4
Dollar or $......................................................5
Euroclear........................................................5
Event of Default.................................................5
Exchange Date....................................................5
Exchange Rate....................................................5
Holder...........................................................5
Indenture........................................................5
interest.........................................................5
Interest Payment Date............................................5
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C> <C>
Lien............................................................. 6
Maturity,........................................................ 6
Officers' Certificate............................................ 6
Opinion of Counsel............................................... 6
Ordinary Course Lien............................................. 6
Original Issue Discount Security................................. 6
Outstanding...................................................... 7
Paying Agent..................................................... 8
Person........................................................... 8
Place of Payment................................................. 8
Predecessor Security............................................. 8
Redemption Date.................................................. 8
Redemption Price................................................. 8
Registered Security.............................................. 8
Regular Record Date.............................................. 8
Required Currency................................................ 8
Responsible Officer.............................................. 9
Sale/Leaseback Transaction....................................... 9
Securities....................................................... 9
Security Register and Security Registrar......................... 9
Senior Indebtedness.............................................. 9
Special Record Date.............................................. 9
Stated Maturity.................................................. 9
Subsidiary....................................................... 9
Trustee..........................................................10
Trust Indenture Act..............................................10
United States....................................................10
United States Alien..............................................10
U.S. Government Obligations......................................10
Vice President...................................................10
Yield to Maturity................................................10
SECTION 102. Incorporation by Reference of Trust Indenture Act.......10
SECTION 103. Compliance Certificates and Opinions....................11
SECTION 104. Form of Documents Delivered to Trustee..................12
SECTION 105. Acts of Holders; Record Dates...........................12
SECTION 106. Notices, Etc., to Trustee and Company...................14
SECTION 107. Notice to Holders; Waiver...............................14
SECTION 108. Conflict With Trust Indenture Act.......................15
SECTION 109. Effect of Headings and Table of Contents................15
SECTION 110. Successors and Assigns..................................15
SECTION 111. Separability Clause.....................................16
SECTION 112. Benefits of Indenture...................................16
SECTION 113. Governing Law...........................................16
SECTION 114. Legal Holidays..........................................16
SECTION 115. Corporate Obligation....................................16
</TABLE>
-ii-
<PAGE>
ARTICLE TWO
Security Forms
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 201. Forms Generally.......................................17
SECTION 202. Form of Trustee's Certificate of Authentification.....17
SECTION 203. Securities in Global Form.............................18
SECTION 204. Book-Entry Securities.................................19
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series..................21
SECTION 302. Denominations.........................................24
SECTION 303. Execution, Authentication, Delivery and Dating........24
SECTION 304. Temporary Securities..................................26
SECTION 305. Registration, Registration of Transfer and Exchange...28
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities......31
SECTION 307. Payment of Interest; Interest Rights Preserved........32
SECTION 308. Persons Deemed Owners.................................34
SECTION 309. Cancellation..........................................34
SECTION 310. Computation of Interest...............................35
SECTION 311. CUSIP Numbers.........................................35
ARTICLE FOUR
Satisfaction And Discharge
SECTION 401. Satisfaction and Discharge of Indenture...............35
SECTION 402. Application of Trust Money............................37
SECTION 403. Discharge of Liability on Securities of Any Series....37
SECTION 404. Reinstatement.........................................38
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.....................................39
SECTION 502. Acceleration of Maturity; Rescission and Annulment....41
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee............................................42
SECTION 504. Trustee May File Proofs of Claim......................43
</TABLE>
-iii-
<PAGE>
<TABLE>
<S> <C> <C>
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons..........................................44
SECTION 506. Application of Money Collected.................................44
SECTION 507. Limitation on Suits............................................45
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest...........................................46
SECTION 509. Rights and Remedies Cumulative.................................46
SECTION 510. Delay or Omission Not Waiver...................................46
SECTION 511. Control by Holders.............................................46
SECTION 512. Waiver of Past Defaults........................................47
SECTION 513. Undertaking for Costs..........................................47
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities............................48
SECTION 602. Notice of Defaults.............................................49
SECTION 603. Certain Rights of Trustee......................................49
SECTION 604. Not Responsible for Recitals or Issuance of Securities.........50
SECTION 605. May Hold Securities............................................51
SECTION 606. Money Held in Trust............................................51
SECTION 607. Compensation and Reimbursement.................................51
SECTION 608. Disqualification; Conflicting Interests........................52
SECTION 609. Corporate Trustee Required; Eligibility........................52
SECTION 610. Resignation and Removal; Appointment of Successor..............53
SECTION 611. Acceptance of Appointment by Successor.........................54
SECTION 612. Merger, Conversion, Consolidation or Succession to Business....55
SECTION 613. Preferential Collection of Claims Against Company..............55
SECTION 614. Appointment of Authenticating Agent............................55
ARTICLE SEVEN
Holder's Lists And Reports By Trustee And Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders......58
SECTION 702. Preservation of Information; Communications to Holders.........58
SECTION 703. Reports by Trustee.............................................59
SECTION 704. Reports by Company.............................................59
</TABLE>
-iv-
<PAGE>
ARTICLE EIGHT
Consolidation, Merger And Sale Of Assets
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms..........60
SECTION 802. Successor Person Substituted..................................60
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders............61
SECTION 902. Supplemental Indentures With Consent of Holders...............62
SECTION 903. Execution of Supplemental Indentures..........................64
SECTION 904. Effect of Supplemental Indentures.............................64
SECTION 905. Conformity With Trust Indenture Act...........................64
SECTION 906. Reference in Securities to Supplemental Indentures............64
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest....................64
SECTION 1002. Maintenance of Office or Agency...............................65
SECTION 1003. Money for Securities Payments to be Held in Trust.............66
SECTION 1004. Existence.....................................................68
SECTION 1005. Liens.........................................................68
SECTION 1006. Sale/Leaseback Transactions...................................70
SECTION 1007. Statement by Officers as to Default...........................71
SECTION 1008. Waiver of Certain Covenants...................................71
SECTION 1009. Additional Amounts............................................71
ARTICLE ELEVEN
Redemption Of Securities
SECTION 1101. Applicability of Article......................................72
SECTION 1102. Election to Redeem; Notice to Trustee.........................72
SECTION 1103. Selection by Trustee of Securities to be Redeemed.............73
SECTION 1104. Notice of Redemption..........................................73
SECTION 1105. Deposit of Redemption Price...................................74
SECTION 1106. Securities Payable on Redemption Date.........................74
SECTION 1107. Securities Redeemed in Part...................................75
SECTION 1108. Purchase of Securities........................................76
</TABLE>
-v-
<PAGE>
ARTICLE TWELVE
Sinking Funds
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 1201. Applicability of Article...................................76
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities......76
SECTION 1203. Redemption of Securities for Sinking Fund..................77
ARTICLE THIRTEEN
Meetings of Holders of Securities
SECTION 1301. Purposes for Which Meetings May Be Called..................77
SECTION 1302. Call, Notice and Place of Meetings.........................77
SECTION 1303. Persons Entitled to Vote at Meetings.......................78
SECTION 1304. Quorum; Action.............................................78
SECTION 1305. Determination of Voting Rights; Conduct and
Adjournment of Meetings....................................79
SECTION 1306. Counting Votes and Recording Action of Meetings............80
TESTIMONIUM.................................................................80
SIGNATURE AND SEALS.........................................................81
ACKNOWLEDGMENTS.............................................................82
EXHIBIT A -- FORM OF CERTIFICATE TO BE GIVEN BY OWNER OF
INTEREST IN A GLOBAL SECURITY.............................A-1
EXHIBIT B -- FORM OF CERTIFICATION TO BE GIVEN BY EUROCLEAR
OR CEDEL S.A..............................................B-1
</TABLE>
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INDENTURE, dated as of October ___, 1996 between STEWART ENTERPRISES,
INC., a corporation duly organized and existing under the laws of the State of
Louisiana (herein called the "Company"), having its principal office at 110
Veterans Boulevard, Metairie, Louisiana 70005, and Citibank, N.A., a national
banking association, as trustee (herein called the "Trustee"), the office of the
Trustee at which at the date hereof its corporate trust business is principally
administered being 120 Wall Street, New York, New York 10043.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as provided herein.
This Indenture is subject to the provisions of the Trust Indenture Act
and the rules and regulations of the Commission promulgated thereunder that are
required to be part of this Indenture and, to the extent applicable, shall 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 include the plural as well as the singular;
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(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with respect to
any computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States at the date of such
computation; and
(3) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in Section
102.
"Act," when used with respect to any Holder, has the meaning
specified in Section 105.
"Additional Amounts" means any additional amounts that are required
by the express terms of a Security or by or pursuant to a Board Resolution,
under circumstances specified therein or pursuant thereto, to be paid by the
Company with respect to certain taxes, assessments or other governmental charges
imposed on certain Holders and that are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt," when used in connection with a Sale/Leaseback
Transaction, means, at the time of determination, the then present value of the
total net amount of rent required to be paid under the lease in respect of such
Sale/Leaseback Transaction during the remaining term thereof (including any
period for which such lease has been extended) or until the earlier date on
which the lessee may terminate such lease upon payment of a penalty or a lump-
sum termination payment (in which case the total net rent shall include such
penalty or termination payment), computed by discounting from the respective due
dates such total net amount of rent at the actual interest factor included in
such rent or implicit in the terms of the applicable Sale/Leaseback Transaction,
as determined in good faith by the Company. For purposes of this definition,
rent shall not include amounts required to be paid by the lessee, whether or not
designated as rent or additional rent, on account of or contingent upon the
amount of sales or deliveries, maintenance and repair, insurance, taxes,
assessments, water rates and similar charges.
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"Authenticating Agent" means any Person, which may include the
Company, authorized by the Trustee to act on behalf of the Trustee pursuant to
Section 614 to authenticate Securities of one or more series.
"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 the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form established pursuant
to Section 201 which is payable to bearer, including, without limitation, unless
the context otherwise indicates, a Security in temporary or permanent global
bearer form.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" has the meaning specified in Section 204.
"Business Day," when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capitalized Lease Obligation" of any Person means any obligation that
is required to be classified and accounted for as a capital lease on a balance
sheet of such Person in accordance with generally accepted accounting
principles.
"CEDEL" or "CEDEL S.A." means Cedel Bank S.A. or, if any time after
the execution of this Indenture, Cedel Bank S.A. is not existing and performing
the duties now being performed by it, then the successor Person performing such
duties.
"Certification Date" means with respect to Securities of any series
(i) if Bearer Securities of such series are not to be initially represented by a
temporary global Security, the date of delivery of the definitive Bearer
Security and (ii), if Bearer Securities of such series are initially represented
by a temporary global Security, the earlier of (A) the Exchange Date with
respect to Securities of such series and (B), if the first Interest Payment Date
with respect to Securities of such series is prior to such Exchange Date, such
Interest Payment Date.
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"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument 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" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chief Executive
Officer, its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Controller, an Assistant Controller, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the total amount of assets
(less applicable reserves and other properly deductible items) of the Company
and its Subsidiaries on a consolidated basis after deducting therefrom: (i) all
current liabilities (excluding any thereof which are by their terms extendable
or renewable at the option of the obligor thereon to a time more than twelve
months after the time as of which the amount thereof is being computed) and (ii)
all goodwill, trade names, trademarks, patents, unamortized debt discount and
other like intangible assets.
"Conversion Event" has the meaning specified in Section 501.
"Corporate Trust Office" means the principal office of the Trustee in
New York, New York, at which at any particular time its corporate trust business
shall be principally administered, which office at the date hereof is that
indicated in the introductory paragraph of this Indenture, except that for
purposes of presentation of Registered Securities for payment or registration of
transfer or exchange, such term means the office or agency of the Trustee at
which at any particular time its corporate agency business shall be conducted,
which office at the date hereof is located at 111 Wall Street, New York, New
York 10043.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Debt" means (without duplication), with respect to the Company and
its Subsidiaries (i) all obligations of the Company and its Subsidiaries,
whether evidenced by bonds, debentures, notes or other similar interests, for
repayment of borrowed money provided that if the Debt is nonrecourse, the amount
of Debt shall be limited to the value of the assets securing the Debt, (ii) all
Capitalized Lease Obligations of the Company and its Subsidiaries, (iii) all
Debt of other Persons secured by a Lien on any asset of the Company or its
Subsidiaries, whether or not such Debt is assumed by the Company or its
Subsidiaries and (iv) all Debt of other Persons guaranteed, directly or
indirectly, by the Company or its Subsidiaries to the extent of such guarantee.
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"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of a global Security, the Person designated as
Depositary by the Company pursuant to Section 301 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such person,
"Depositary" as used with respect to the Securities of any series shall mean the
Depositary with respect to the Securities of that series.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"Euroclear" means the operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate" has the meaning specified in Section 501.
"Holder," when used with respect to any Security, means in the case
of a Registered Security the Person in whose name the 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, means the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301 and the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument.
"interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date," when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, charge, security interest, assignment, encumbrance,
conditional sale or other title retention agreement; provided, however, that
Lien shall not include a trust established for the purpose of
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defeasing any Debt pursuant to the terms evidencing or providing for the
issuance of such Debt if the assets of such trust are limited to cash and U.S.
Government Obligations.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chief
Executive Officer, the President or a Vice President, and by the Treasurer, the
Controller, the Secretary or an Assistant Treasurer, Assistant Controller or
Assistant Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Company and who shall be reasonably acceptable
to the Trustee, rendered, if applicable, in accordance with Section 314(c) of
the Trust Indenture Act.
"Ordinary Course Lien" means:
(i) Liens for taxes, assessments or governmental changes or levies on
the property of the Company or any Subsidiary if the same shall not at the time
be delinquent or thereafter can be paid without penalty, or are being contested
in good faith and by appropriate proceedings and for which adequate reserves in
accordance with generally accepted accounting principles shall have been set
aside on the books of the Company;
(ii) Liens imposed by law, such as carriers', warehousemen's,
landlords', materialmen's, repairmen's and mechanics' liens and other similar
liens arising in the ordinary course of business which secure obligations not
more than 60 days past due or which are being contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with
generally accepted accounting principles shall have been set aside on the books
of the Company; and
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other social
security or retirement benefits or similar legislation;
"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:
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(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore irrevocably 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; and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether a
quorum is present at a meeting of Holders of Securities, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the principal amount thereof that would
be due and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 502, (b) the principal amount of a Security
denominated in a foreign currency shall be the U.S. dollar equivalent,
determined by the Company on the date of original issuance of such Security, of
the principal amount (or, in the case of an Original Issue Discount Security,
the U.S. dollar equivalent, determined on the date of original issuance of such
Security, of the amount determined as provided in (a) above), of such Security
and (c) Securities owned by the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person, which may include the Company,
authorized by the Company to pay the principal of (and premium, if any) or
interest on any one or more series of Securities on behalf of the Company.
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"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified in
accordance with Section 301 subject to the provisions of Section 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 306 in exchange for or in
lieu of a mutilated, 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 a mutilated, destroyed, lost or stolen coupon appertains,
as the case may be.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security in the form established
pursuant to Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of any series means the date specified
for that purpose as contemplated by Section 301, or, if not so specified, the
last day of the calendar month preceding such Interest Payment Date if such
Interest Payment Date is the fifteenth day of the calendar month or the
fifteenth day of the calendar month preceding such Interest Payment Date if such
Interest Payment Date is the first day of a calendar month, whether or not such
day shall be a Business Day.
"Required Currency" has the meaning specified in Section 506.
"Responsible Officer," when used with respect to the Trustee, means
the Chairman or any Vice Chairman of the Board of Directors, the Chairman or any
Vice Chairman of the Executive Committee of the Board of Directors, the Chairman
of the Trust Committee, the President, any Vice President, the Secretary, any
Assistant Secretary, the Treasurer, any Assistant Treasurer, the Cashier, any
Assistant Cashier, any Trust Officer or Assistant Trust Officer, the Controller
or any Assistant Controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular
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corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Sale/Leaseback Transaction" means any arrangement with any Person
providing for the leasing by the Company or its Subsidiaries, for a period of
more than three years, of any property or assets which property or assets have
been or are to be sold or transferred by the Company or its Subsidiaries to such
Person in contemplation of such leasing.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means any Debt of the Company that ranks at
least equally with the Securities.
"Special Record Date" for the payment of any Defaulted Interest on
the Registered Securities of any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or 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.
"Subsidiary" of a Person means (i) any corporation more than 50% of
the outstanding securities having ordinary voting power of which is owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries, or
by such Person and one or more of its Subsidiaries, or (ii) any partnership or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned. For the purposes
of this definition and the definition of Wholly Owned Subsidiary, "securities or
ownership interests having ordinary voting power" means securities or other
equity interests that ordinarily have voting power for the election of
directors, or persons having management power with respect to the Person,
whether at all times or only so long as no senior class of securities has such
voting power by reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
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"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905.
"United States" means the United States of America (including the
States and the District of Columbia) and its "possessions", which include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"United States Alien" means any Person who, for United States federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien or foreign fiduciary of an estate or trust, or a foreign
partnership.
"U.S. Government Obligations" has the meaning specified in Section
401.
"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".
"Yield to Maturity", when used with respect to any Original Issue
Discount Security, means the yield to maturity, if any, set forth on the face
thereof.
SECTION 102. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this
Indenture. The following Trust Indenture Act terms used in this Indenture have
the following meanings:
"Bankruptcy Act" means the Bankruptcy Act or Title 11 of the United
States Code.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
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All the other Trust Indenture Act terms used in this Indenture that
are defined by the Trust Indenture Act, defined by Trust Indenture Act reference
to another statute or defined by Commission rule under the Trust Indenture Act
and not otherwise defined herein have the meanings assigned to them therein.
SECTION 103. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, 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 (including
any covenants the compliance with which constitutes a condition precedent),
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any (including any covenants the
compliance with which constitutes a condition precedent), have been complied
with, except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each Person 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 Person, such Person
has made such examination or investigation as is necessary to enable such Person
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 Person,
such condition or covenant has been complied with.
SECTION 104. 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
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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 105. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. 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 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 a meeting of Holders of Securities of such
series duly called and held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and any such records. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
the holding of any Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section. The record of
any meeting of Holders of Securities shall be proved in the manner provided in
Section 1306.
The Company may set in advance a record date for purposes of
determining the identity of Holders of Registered Securities entitled to vote or
consent to any action by vote or consent authorized or permitted under this
Indenture, which record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders
furnished
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to the Trustee prior to such solicitation. If a record date is fixed, those
persons who were Holders of Outstanding Registered Securities at such record
date (or their duly designated proxies), and only those persons, shall be
entitled with respect to such Securities to take such action by vote or consent
or to revoke any vote or consent previously given, whether or not such persons
continue to be Holders after such record date. Promptly after any record date
is set pursuant to this paragraph, the Company, at its own expense, shall cause
notice thereof to be given to the Trustee in writing in the manner provided in
Section 106 and to the relevant Holders as set forth in Section 107.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered Securities
held by any Person, and the date of holding the same, 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 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 bearing a later date issued in respect
of the same Bearer Security is produced, (2) such Bearer Security is produced to
the Trustee by some other Person, (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 which the Trustee deems sufficient.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security. Any Holder or subsequent Holder may revoke the request, demand,
authorization, direction, notice, consent or other Act as to his Security or
portion of his Security; provided, however, that such revocation shall
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be effective only if the Trustee receives the notice of revocation before the
date the Act becomes effective.
SECTION 106. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and received (a) in the case of Registered Securities, 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,
Attention: Chief Executive Officer, with a copy to Edward N. George, Henican,
James & Cleveland, 111 Veterans Boulevard, Suite 1200, Metairie, Louisiana
70005; and (b) in the case of Bearer Securities, at the address of an office or
agency located outside the United States maintained by the Company in accordance
with Section 1002.
SECTION 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of Securities of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) (i) to Holders of Registered Securities if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event, at
the address of such Holder 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 and (ii) to Holders of Bearer Securities if published in
an Authorized Newspaper in the City of New York and London or other capital city
in Western Europe and in such other city or cities as may be specified in such
Bearer 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.
In case by reason of the suspension of regular mail service, or by
reason of any other cause it shall be impracticable to give such notice to
Holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder. In any case in which notice to Holders of
Registered Securities is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder of a
Registered Security, 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 herein.
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In case by reason of the suspension 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 made with the
approval of the Trustee for such Securities shall constitute sufficient notice
to such Holders for every purpose hereunder. Neither the failure to give notice
by publication to Holders of Bearer Securities as provided above, nor any defect
in any notice so published, shall affect the sufficiency of any notice to
Holders of Registered Securities given as provided herein.
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 108. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision hereof which is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision of the Trust Indenture Act shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act which may be so modified or excluded, the former provision shall
be deemed to apply to this Indenture as so modified or to be excluded.
SECTION 109. 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 110. 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 111. Separability Clause.
In case any provision in this Indenture or in the Securities (or any
coupon appertaining thereto) 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.
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SECTION 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities (or any coupon
appertaining thereto), express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, any Authenticating Agent,
Paying Agent and Security Registrar, and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 113. Governing Law.
This Indenture and the Securities (or any coupon appertaining thereto)
shall be governed by and construed in accordance with the laws of the State of
New York, but without giving effect to applicable principles of conflicts of law
to the extent the application of the laws of another jurisdiction would be
required thereby.
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
or coupons appertaining thereto) payment of principal and interest (and premium
and Additional Amounts, 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 at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be.
SECTION 115. Corporate Obligation.
No recourse may be taken, directly or indirectly, against any
incorporator, subscriber to the capital stock, stockholder, officer, director or
employee of the Company or the Trustee or of any predecessor or successor of the
Company or the Trustee with respect to the Company's obligations on the
Securities or any coupons appertaining thereto or the obligations of the Company
or the Trustee under this Indenture or any certificate or other writing
delivered in connection herewith.
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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 appertaining thereto
shall be in substantially such form or forms (including temporary or permanent
global form) as shall be established by or pursuant to a Board Resolution or in
one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
or coupons appertaining thereto, as evidenced by their execution of the
Securities or coupons appertaining thereto. If temporary Securities of any
series are issued in global form as permitted by Section 304, the form thereof
shall be established as provided in the preceding sentence. A copy of the Board
Resolution establishing the form or forms of Securities or coupons appertaining
thereto of any series (or any such temporary global Security) 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 any such
temporary global Security) or coupons appertaining thereto.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons appertaining thereto attached.
The definitive Securities and coupons appertaining thereto, if any,
shall be printed, lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers executing such
Securities or coupons appertaining thereto, as evidenced by their execution
thereof.
SECTION 202. Form of Trustee's Certificate of Authentification.
The Trustee's certificate of authentification shall be in
substantially the following form:
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"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 in Global Form.
If Securities of a series are issuable in global form, as contemplated
by Section 301, then, notwithstanding clause (10) of Section 301 and the
provisions of Section 302, 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
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. 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 in such Security or in a Company
Order to be delivered to the Trustee pursuant to Section 303 or Section 304.
Subject to the provisions of Section 303 and, if applicable, Section 304, 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 in such
Security or in the applicable Company Order. If a Company Order pursuant to
Section 303 or 304 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 103
and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
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 103 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 Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of (and
premium, if any) and interest on any Security in permanent global form shall be
made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company or of the Trustee shall treat a Person as the Holder of such principal
amount of Outstanding Securities represented by a global Security as shall be
specified in a written statement, if any, of the Holder of such global
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Security or, in the case of a global Bearer Security, of Euroclear or CEDEL
S.A., which is produced to the Security Registrar by such Holder, Euroclear or
CEDEL S.A., as the case may be.
Global Securities may be issued in either registered or bearer form
and in either temporary or permanent form. Permanent global Securities will be
issued in definitive form.
SECTION 204. Book-Entry Securities.
Notwithstanding any provision of this Indenture to the contrary:
(a) At the discretion of the Company, any Registered Security may be
issued from time to time, in whole or in part, in permanent global form
registered in the name of a Depositary, or its nominee. Each such Registered
Security in permanent global form is hereafter referred to as a "Book-Entry
Security." Upon such election, the Company shall execute, and the Trustee or an
Authenticating Agent shall authenticate and deliver, one or more Book-Entry
Securities that (i) are denominated in an amount equal to the aggregate
principal amount of the Outstanding Securities of such series if elected in
whole or such lesser amount if elected in part, (ii) are registered in the name
of the Depositary or its nominee, (iii) are delivered by the Trustee or an
Authenticating Agent to the Depositary or pursuant to the Depositary's
instructions and (iv) bear a legend in substantially the following form (or such
other form as the Depositary and the Company may agree upon):
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF [THE DEPOSITARY], TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF [NOMINEE OF THE DEPOSITARY] OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF [THE DEPOSITARY] (AND ANY PAYMENT IS MADE TO [NOMINEE
OF THE DEPOSITARY] OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF [THE DEPOSITARY]), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, [NOMINEE OF THE DEPOSITARY], HAS AN INTEREST
HEREIN.
(b) Any Book-Entry Security shall be initially executed and delivered as
provided in Section 303. Notwithstanding any other provision of this Indenture,
unless and until it is exchanged in whole or in part for Registered Securities
not issued in global form, a Book-Entry Security may not be transferred except
as a whole by the Depositary to a nominee of such Depositary, by a nominee of
such Depositary to such Depositary or another nominee of such Depositary, or by
such
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Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.
(c) If at any time the Depositary notifies the Company or the Trustee that
it is unwilling or unable to continue as Depositary for any Book-Entry
Securities, the Company shall appoint a successor Depositary, whereupon the
retiring Depositary shall surrender or cause the surrender of its Book-Entry
Security or Securities to the Trustee. The Trustee shall promptly notify the
Company upon receipt of such notice. If a successor Depositary has not been so
appointed by the effective date of the resignation of the Depositary, the Book-
Entry Securities will be issued as Registered Securities not issued in global
form, in an aggregate principal amount equal to the principal amount of the
Book-Entry Security or Securities theretofore held by the Depositary.
The Company may at any time and in its sole discretion determine that
the Securities shall no longer be Book-Entry Securities represented by a global
certificate or certificates, and will so notify the Depositary. Upon receipt of
such notice, the Depositary shall promptly surrender or cause the surrender of
its Book-Entry Security or Securities to the Trustee. Concurrently therewith,
Registered Securities not issued in global form will be issued in an aggregate
principal amount equal to the principal amount of the Book-Entry Security or
Securities theretofore held by the Depositary.
Upon any exchange of Book-Entry Securities for Registered Securities
not issued in global form as set forth in this Section 204(c), such Book-Entry
Securities shall be cancelled by the Trustee, and Securities issued in exchange
for such Book-Entry Securities pursuant to this Section shall be registered in
such names and in such authorized denominations as the Depositary for such Book-
Entry Securities, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee or any
Authenticating Agent shall deliver such Securities to the persons in whose names
such Securities are so registered.
(d) The Company and the Trustee shall be entitled to treat the Person in
whose name any Book-Entry Security is registered as the Holder thereof for all
purposes of the Indenture and any applicable laws, notwithstanding any notice to
the contrary received by the Trustee or the Company; and the Trustee and the
Company shall have no responsibility for transmitting payments to, communication
with, notifying, or otherwise dealing with any beneficial owners of any Book-
Entry Security. Neither the Company nor the Trustee shall have any
responsibility or obligations, legal or otherwise, to the beneficial owners or
to any other party including the Depositary, except for the Holder of any Book-
Entry Security, provided, however, notwithstanding anything herein to the
contrary, (i) for the purposes of determining whether the requisite principal
amount of Outstanding Securities have given, made or taken any request, demand,
authorization, direction, notice, consent, waiver, instruction or other action
hereunder as of any date, the Trustee shall treat any Person specified in a
written statement of the Depositary with respect to any Book-Entry Securities as
the Holder of the principal amount of such Securities set forth therein and (ii)
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or Trustee, from giving effect to any written certification, proxy or
other authorization furnished by a Depositary with respect to any Book-Entry
Securities, or impair, as between a Depositary and holders of beneficial
interests in such
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Securities, the operation of customary practices governing the exercise of the
rights of the Depositary as Holder of such Securities.
(e) So long as any Book-Entry Security is registered in the name of a
Depositary or its nominee, all payments of the principal of (and premium, if
any, on) and interest on such Book-Entry Security and redemption thereof and all
notices with respect to such Book Entry Security shall be made and given,
respectively, in the manner provided in the arrangements of the Company with
such Depositary.
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 or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906 or 1107);
(3) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, 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, as Book-Entry Securities
or otherwise, with or without coupons appertaining thereto 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 305, and
the Depositary for any global Security or Securities;
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(4) the manner in which, or the Person to whom, any interest on any
Bearer Security of the series shall be payable, if otherwise 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 Security on any Interest Payment Date will be paid if other
than in the manner provided in Section 304;
(5) the date or dates on which the principal of (and premium, if any, on)
the Securities of the series is payable or the method of determination thereof;
(6) the rate or rates, or the method of determination thereof, at which the
Securities of the series shall bear interest, if any, whether and under what
circumstances Additional Amounts with respect to such Securities shall be
payable, the date or dates from which such interest shall accrue, the Interest
Payment Dates on which such interest shall be payable and, if other than as set
forth in Section 101, the Regular Record Date for the interest payable on any
Registered Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions of Section 1002,
the principal of (and premium, if any), any interest on and any Additional
Amounts with respect to the Securities of the series shall be payable;
(8) the period or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at which and the terms and
conditions upon which Securities of the series may be redeemed, in whole or in
part, at the option of the Company, if the Company is to have that option, and
the manner in which the Company must exercise any such option;
(9) the obligation, if any, of the Company to redeem or purchase Securities
of the series pursuant to any sinking fund or analogous provisions or at the
option of a Holder thereof and the period or periods within which, the price or
prices (whether denominated in cash, securities or otherwise) at which and the
terms and conditions upon which, Securities of the series shall be redeemed or
purchased in whole or in part pursuant to such obligation;
(10) the denomination in which any Registered Securities of that series
shall be issuable, if other than denominations of $1,000 and any integral
multiple thereof, and the denomination in which any Bearer Securities of that
series shall be issuable, if other than the denomination of $5,000;
(11) the currency or currencies (including composite currencies) in which
payment of the principal of (and premium, if any), any interest on and any
Additional Amounts with respect to the Securities of the series shall be payable
if other than the currency of the United States of America;
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(12) if the principal of (and premium, if any) or interest on the
Securities of the series are to be payable, at the election of the Company or a
Holder thereof, in a currency or currencies (including composite currencies)
other than that in which the Securities are stated to be payable, the currency
or currencies (including composite currencies) in which payment of the principal
of (and premium, if any) and interest on, and any Additional Amounts with
respect to, Securities of such series as to which such election is made shall be
payable, and the periods within which and the terms and conditions upon which
such election is to be made;
(13) if the amount of payments of principal of (and premium, if any), any
interest on and any Additional Amounts with respect to the Securities of the
series may be determined with reference to any commodities, currencies or
indices, or values, rates or prices, the manner in which such amounts shall be
determined;
(14) if other than the entire principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(15) any additional means of satisfaction and discharge of this Indenture
with respect to Securities of the series pursuant to Section 401, any additional
conditions to discharge pursuant to Section 401 or 403 and the application, if
any, of Section 403;
(16) any deletions or modifications of or additions to the Events of
Default set forth in Section 501 or covenants of the Company set forth in
Article Ten pertaining to the Securities of the series; and
(17) any other terms of the series (which terms shall not be inconsistent
with 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 the Board Resolution referred to above and (subject
to Section 303) set forth, or determined in the manner provided, in the
Officers' Certificate referred to above or in any such indenture supplemental
hereto.
At the option of the Company, interest on the Registered Securities
of any series that bears interest may be paid by mailing a check to the address
of any Holder as such address shall appear in the Security Register.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
together with such Board Resolution 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 Officers' Certificate setting forth the terms of the series.
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SECTION 302. Denominations.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 301. In the
absence of any such provisions with respect to the Securities of any series, the
Registered Securities of such series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiple thereof and any Bearer
Securities of such series denominated in Dollars shall be issuable in the
denominations of $5,000 and any integral multiple thereof. Unless otherwise
provided as contemplated by Section 301 with respect to any series of
Securities, any Securities of a series denominated in a currency other than
Dollars shall be issuable in denominations that are the equivalent, as
determined by the Company by reference to the noon buying rate in The City of
New York for cable transfers for such currency, as such rate is reported or
otherwise made available by the Federal Reserve Bank of New York, on the
applicable issue date for such Securities, of $1,000 and any integral multiple
thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chief Executive Officer, its President, its Treasurer or one of its Vice
Presidents, under its corporate seal reproduced thereon or affixed thereto
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile. Coupons
shall bear the facsimile signature of the Chief Executive Officer, President,
Treasurer or any Vice President of the Company.
Securities and coupons appertaining thereto 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 coupons 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 the Company
Order shall authenticate and deliver such Securities as in this Indenture
provided and not otherwise; provided, however, that, in connection with its
sale, during the "restricted period" (as defined in Section 1.163-
5(c)(2)(i)(D)(7) of the United States Treasury Regulations), no Bearer Security
shall be mailed or otherwise delivered to any location in the United States; and
provided, further, that a Bearer Security may (other than a temporary global
security in bearer form delivered as provided in Section 304) be delivered
outside the United States in connection with its original issuance and only if
the Person entitled to receive such Bearer Security shall have furnished a
certificate in the form set forth in Exhibit A to this Indenture, or in such
other form of certificate as shall contain information then required by federal
income tax laws and, if applicable, federal securities laws, dated no earlier
than the Certification Date. If any Security shall be represented by a permanent
global
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Bearer Security, then, for purposes of this Section and Section 304, 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 sale, during the "restricted period"
(as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury
Regulations) of such beneficial owner's interest in such permanent global
Security. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
(c) that such Securities, together with any coupons appertaining
thereto, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute legal, valid and binding obligations of
the Company, enforceable in accordance with their terms, except as such
enforcement is subject to the effect of (i) bankruptcy, insolvency,
fraudulent conveyance, reorganization or other laws relating to or
affecting creditors' rights and (ii) general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law).
If such form or terms have not been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its
authentication; and each Bearer Security shall be dated as of the date of
initial issuance of such Bearer Security or its Predecessor Security.
No Security or coupon or coupons appertaining thereto shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security, or the Security to which such
coupon appertains, a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly
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authenticated and delivered hereunder. 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 309 together with a written
statement (which need not comply with Section 103 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. Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized, in bearer form with one or
more coupons appertaining thereto or without coupons, and with such appropriate
insertions, omissions, substitutions and other variations as the officers of the
Company executing such Securities may determine, as evidenced by their execution
of such Securities. In the case of any series issuable as Bearer Securities,
such temporary Securities may be in global form. A temporary Bearer Security
shall be delivered only in compliance with the conditions set forth in Section
303.
Except in the case of temporary Securities in global form (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. 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; provided, however that no Bearer Security shall be issued in
exchange for a temporary Registered Security; and provided, further, that a
definitive Bearer Security (including interests in a permanent Global Security)
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303.
Any temporary global Bearer Security and any permanent global
Bearer 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 S.A. for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as they may
direct).
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Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Bearer Security of a series (the "Exchange Date"), the Company shall deliver to
the Trustee definitive Securities of that series in aggregate principal amount
equal to the principal amount of such temporary global Bearer Security, executed
by the Company. On or after the Exchange Date such temporary global Bearer
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 of that series without charge and the Trustee
shall authenticate and deliver, in exchange for each portion of such temporary
global Bearer Security, a like aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such temporary global Bearer Security to be exchanged; provided,
however, that unless otherwise specified in such temporary global Bearer
Security, no such definitive Securities shall be delivered unless, upon such
presentation by the Common Depositary, such temporary global Bearer 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 Bearer Security
held for its account then to be exchanged and a certificate dated the Exchange
Date or a subsequent date and signed by CEDEL S.A. as to the portion of such
temporary global Bearer Security held for its account then to be exchanged, each
in the form set forth in Exhibit B to this Indenture. The definitive Securities
to be delivered in exchange for any such temporary global Bearer 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.
Unless otherwise specified in the temporary global Bearer Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Bearer Security shall be exchanged on or after the Exchange Date for
definitive Securities (and where the form of the definitive Securities is not
specified by the Holder for an interest in a permanent global Security) of the
same series and of like tenor upon delivery by such beneficial owner to
Euroclear or CEDEL S.A., as the case may be, of a certificate in the form set
forth in Exhibit A to this Indenture dated no earlier than the Certification
Date, copies of which certificate shall be available from the offices of
Euroclear and CEDEL S.A., the Trustee, any Authenticating Agent appointed for
such series of Securities and each Paying Agent. Unless otherwise specified in
such temporary global Bearer Security, any exchange shall be made free of charge
to the beneficial owners of such temporary global Bearer Security, except that a
Person receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euroclear or CEDEL
S.A. Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary global Bearer Security shall be delivered only outside
the United States.
All Outstanding temporary Securities of any series 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 Bearer Security on an Interest
Payment Date for
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Securities of such series shall be payable to Euroclear and CEDEL S.A. on such
Interest Payment Date upon delivery by Euroclear and CEDEL S.A. to the Trustee
of a certificate or certificates in the form set forth in Exhibit B to this
Indenture, for credit without further interest on or after such Interest Payment
Date to the respective accounts of the Persons who are the beneficial owners of
such temporary global Bearer Security on such Interest Payment Date and who have
each delivered to Euroclear or CEDEL S.A., as the case may be, a certificate in
the form set forth in Exhibit A to this Indenture. Any interest so received by
Euroclear or CEDEL S.A. 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 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept for each series of Securities
at one of the offices or agencies maintained pursuant to Section 1002 a register
(the register maintained in such office and in any other office or agency of the
Company in a Place of Payment being herein sometimes collectively 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 of such series. The Trustee
is hereby initially appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any 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 and of like tenor, 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 and of like
tenor, of any authorized denominations and of a like aggregate principal amount,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive. A Holder of Registered
Securities cannot have Bearer Securities issued in exchange for such Registered
Securities.
At the option of the Holder of Bearer Securities of any series,
such Bearer Securities may be exchanged for Registered Securities of the same
series of any authorized denominations and of a like aggregate principal amount
and tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default,
such exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company in an amount equal to the face amount
of such missing coupon or coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there is furnished to
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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 from the
Company 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 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.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the beneficial owners of interests in a
permanent global Security are 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, then without
unnecessary delay but in any event not later than the earliest date on which
such interests may be so exchanged, the Company shall deliver to the Trustee
definitive Securities of that series in an aggregate principal amount equal to
the principal amount of 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 from time to time in accordance
with instructions given to the Trustee and the Depositary or Common Depositary,
as the case may be (which instructions shall be in writing but need not comply
with Section 103 or be accompanied by an Opinion of Counsel) by the Common
Depositary or such other depositary or Common 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 in part, for definitive
Securities of the same series without charge and the Trustee shall authenticate
and deliver, in exchange for each portion of such permanent global Security, a
like aggregate principal amount of other 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
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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 of that series is to be redeemed and
ending on the relevant Redemption Date; 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.
Promptly following any such exchange in part, such permanent global Security
marked to evidence the partial exchange shall be returned by the Trustee to the
Common Depositary or such other depositary or Common Depositary referred to
above in accordance with the instructions of the Company referred to above. If
a Registered Security is issued in exchange for any portion of a 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 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 Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than exchange
pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of such series selected for redemption 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, except that 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 called for
redemption in whole or in part, except the
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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.
SECTION 306. 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, 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.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon appertaining thereto 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 its request the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security or in exchange for the Security to 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.
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, pay such Security; provided,
however, that the principal of and any premium and interest on Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fee 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 destroyed, lost or stolen Security or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupons shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
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The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest 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 that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. Interest on any Bearer Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the bearer of the applicable coupon appertaining to such Bearer Security.
Unless otherwise provided with respect to the Securities of any series, payment
of interest may be made at the option of the Company (i) in the case of
Registered Securities, by check mailed or delivered to the address of any Person
entitled thereto as such address shall appear in the Security Register, or (ii)
in the case of Bearer Securities, except as otherwise provided in Section 1002,
upon presentation and surrender of the appropriate coupon appertaining thereto
at an office or agency of the Company in a Place of Payment located outside the
United States or by transfer to an account maintained by the payee with a bank
located outside the United States.
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 (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (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 equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than ten days prior to the date of the
proposed payment and not less than ten days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
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prepaid, to each Holder of Registered Securities of such series at his address
as it appears in the Security Register, not less than ten days prior to such
Special Record Date. The Trustee may, in its discretion, in the name and at the
expense of the Company, cause a similar notice to be published at least once in
an Authorized Newspaper, but such publication shall not be a condition precedent
to the establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in whose
names the 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 clause (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.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture, upon registration of transfer of, in
exchange for or in lieu of, any other Security, shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners.
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 305 and
307) interest on such Registered Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
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 coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
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SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee. All Registered Securities and matured coupons so delivered
shall be promptly cancelled by the Trustee. All Bearer Securities and unmatured
coupons so delivered shall be held by the Trustee and, upon instruction by a
Company Order, shall be cancelled or held for reissuance. Bearer Securities and
unmatured coupons held for reissuance may be reissued only in replacement of
mutilated, lost, stolen or destroyed Bearer Securities of the same series and
like tenor or the related coupons pursuant to Section 306. All Bearer
Securities and unmatured coupons held by the Trustee pending such cancellation
or reissuance shall be deemed to be delivered to the Trustee for all purposes of
this Indenture and the Securities. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of as
directed by a Company Order; provided that the Trustee shall not be required to
destroy such Securities.
In the case of any temporary global Bearer Security, which shall
be disposed of if the entire aggregate principal amount of the Securities
represented thereby has been exchanged, the certificate of disposition shall
state that all certificates required pursuant to Section 304 hereof,
substantially in the form of Exhibit B hereto, to be given by Euroclear or CEDEL
S.A., have been duly presented to the Trustee for such Securities by Euroclear
or CEDEL S.A., as the case may be. Permanent global Securities shall not be
disposed of until exchanged in full for definitive Securities or until payment
thereon is made in full.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
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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 Securities of a series, and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to Securities of 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 305, (ii) Securities and
coupons which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306, (iii) coupons appertaining to Bearer
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 for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) with respect to all Outstanding Securities of such
series and any coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation, the Company has deposited or caused to be deposited
with the Trustee as trust funds, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, cash or U.S.
Government Obligations, or a combination thereof, maturing as to principal and
interest in such amounts and at such times as will, together with the income to
accrue thereon, without consideration of any reinvestment thereof, be sufficient
to pay and discharge the entire indebtedness on all Outstanding Securities of
such series and coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation for principal (and premium and Additional Amounts, if
any, on), interest and any mandatory sinking fund payments to the Stated
Maturity or any Redemption Date contemplated by the penultimate paragraph of
this Section, as the case may be; or
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(C) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section 301, to
be applicable to the Securities of such series;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to the Outstanding Securities of
such series;
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities of such
series pursuant to this Section 401;
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture with respect to the Outstanding Securities of such series have been
complied with;
(5) if the conditions set forth in Section 401(1)(A) have not
been satisfied, and unless otherwise specified pursuant to Section 301 for the
Securities of such series, the Company has delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of Securities of such series will not
recognize income, gain or loss for United States federal income tax purposes as
a result of such deposit, satisfaction and discharge and will be subject to
United States federal income tax on the same amount and in the same manner and
at the same time as would have been the case if such deposit, satisfaction and
discharge had not occurred; and
(6) no Default or Event of Default with respect to the
Securities of such issue shall have occurred and be continuing on the date of
such deposit or, in so far as clauses (5) or (6) of Section 501 is concerned, at
any time in 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).
For the purposes of this Indenture, "U.S. Government
Obligations" means direct noncallable obligations of, or noncallable obligations
the payment of principal of and interest on which is guaranteed by, the United
States of America, or to the payment of which obligations or guarantees the full
faith and credit of the United States of America is pledged, or beneficial
interests in a trust the corpus of which consists exclusively of money or such
obligations or a combination thereof.
If any Outstanding Securities of such series are to be redeemed
prior to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory sinking fund requirement, the
trust agreement referred to in subclause (B) of clause (1) of this Section shall
provide therefor and the Company shall make such arrangements as are
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satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to the Outstanding Securities of such series pursuant to this
Section 401, the obligations of the Company to the Trustee under Section 607
and, except for a discharge pursuant to subclause (A) of clause (1) of this
Section, the obligations of the Company under Sections 305, 306, 404, 610(e),
614, 701, 1001 and 1002 and 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 and Additional Amounts for the payment of which
such money has been deposited with the Trustee.
SECTION 403. Discharge of Liability on Securities of Any Series.
If this Section is specified, as contemplated by Section 301, to
be applicable to Securities of any series, the Company shall be deemed to have
paid and discharged the entire indebtedness on all the Outstanding Securities of
such series, the obligation of the Company under this Indenture and the
Securities of such series to pay the principal of (and premium, if any) and
interest on Securities of such series, and any coupon appertaining thereto,
shall cease, terminate and be completely discharged and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging such
satisfaction and discharge, when
(1) the Company has complied with the provisions of Section 401
of this Indenture (other than any additional conditions specified pursuant to
Sections 301 and 401(3) and except that the opinion referred to in Section
401(5) shall state that it is based on a ruling by the Internal Revenue Service
or other change since the date hereof under applicable Federal income tax law)
with respect to all Outstanding Securities of such series,
(2) the Company has delivered to the Trustee a Company Request
requesting such satisfaction and discharge,
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities of such
series pursuant to this Section 403, and
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(4) 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 discharge of the indebtedness on
the Outstanding Securities of such series have been complied with.
Upon the satisfaction of the conditions set forth in this Section
with respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that, the Company shall not be discharged
from any payment obligations in respect of Securities of such series which are
deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law or pursuant to Section 305 or 306.
SECTION 404. Reinstatement.
If the Trustee or Paying Agent is unable to apply any cash or
U.S. Government Obligations deposited with respect to Securities of any series
in accordance with Section 401 or 403 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 with respect to the Securities of such series
and the Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 401 or 403 until such time as the
Trustee or Paying Agent is permitted to apply all such cash or U.S. Government
Obligations in accordance with Section 401 or 403; provided, however, that if
the Company has made any payment of principal of (or premium, if any), or
interest on and any Additional Amounts with respect to any Securities because of
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the cash
or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
Unless otherwise specified with respect to Securities of any
series pursuant to Section 301, "Event of Default," wherever used herein with
respect to Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
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(1) failure to pay principal of (or premium, if any, on) any
Security of that series when due at final maturity; or
(2) failure to pay any interim principal payments or any interest
or any Additional Amounts on any Security of that series when such interim
principal payment, interest or Additional Amounts become due and payable, and
continuance of such default for a period of 30 days; or
(3) failure to deposit any mandatory sinking fund payment or
analogous obligation, when and as due, in respect of the Securities of such
series, and continuance of such default for a period of 30 days; or
(4) failure to observe or perform any other covenant or warranty of
the Company in this Indenture (other than a covenant or warranty included in
this Indenture solely for the benefit of one or more series of Securities other
than such series), and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail or by overnight
delivery service, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of all Outstanding
Securities a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default" hereunder;
or
(5) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 90 consecutive days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it, of a petition or
answer or consent seeking reorganization or relief under any applicable Federal
or State law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of an assignment for the
benefit of
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creditors, or the admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the Company
in furtherance of any such action; or
(7) failure to pay at final maturity or upon the declaration of
acceleration of payment of Debt for borrowed money of the Company or any
Subsidiary of the Company (other than a failure to pay being contested in good
faith by the Company or its Subsidiaries with respect to Debt consisting of an
obligation to pay all or part of the acquisition consideration of an acquired
business or asset) of $10 million or more (whether the Debt now exists or is
hereafter created) as a result of the occurrence of one or more events of
default as defined in any mortgages, indentures or instruments under which such
Debt may have been issued or by which such Debt may have secured, and such
failure to pay is not cured or the acceleration is not rescinded, annulled or
cured, in any case prior to the expiration of 30 days after the failure to pay
or acceleration occurred; or
(8) any other Event of Default specified with respect to
Securities of such series.
Notwithstanding the foregoing provisions of this Section 501, if
the principal of (and premium, if any) or any interest on, or Additional Amounts
with respect to, any Security is payable in a currency or currencies (including
a composite currency) other than Dollars and such currency (or currencies) is
(or are) not available to the Company for making payment thereof due to the
imposition of exchange controls or other circumstances beyond the control of the
Company (a "Conversion Event"), the Company will be entitled to satisfy its
obligations to Holders of the Securities by making such payment in Dollars in an
amount equal to the Dollar equivalent of the amount payable in such other
currency, as determined by the Company by reference to the noon buying rate in
The City of New York for cable transfers for such currency ("Exchange Rate"), as
such Exchange Rate is certified for customs purposes by the Federal Reserve Bank
of New York on the date of such payment, or, if such rate is not then available,
on the basis of the most recently available Exchange Rate. Notwithstanding the
foregoing provisions of this Section 501, any payment made under such
circumstances in Dollars where the required payment is in a currency other than
Dollars will not constitute an Event of Default under this Indenture.
Promptly after the occurrence of a Conversion Event, the Company
shall give written notice thereof to the Trustee; and the Trustee, promptly
after receipt of such notice, shall give notice thereof in the manner provided
in Section 107 to the Holders. Promptly after the making of any payment in
Dollars as a result of a Conversion Event, the Company shall give notice in the
manner provided in Section 107 to the Holders, setting forth the applicable
Exchange Rate and describing the calculation of such payments.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (except for an Event of Default described
in clauses (5) or (6) of Section 501 above) with respect to any Securities of
any series at the time Outstanding occurs and
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is continuing, then in every such case either the Trustee or the Holders of at
least 25% in principal amount of the Outstanding Securities of that series may
declare the unpaid principal amount (or, if any such Securities are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of all of the Securities of that series
and the interest, if any, accrued thereon, to be due and payable immediately, by
a notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount (or specified amount) and the
interest, if any, accrued thereon, shall become immediately due and payable. If
an Event of Default described in clause (5) or (6) of Section 501 shall occur,
the principal amount of the Outstanding Securities of all series ipso facto
shall become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made, but before a judgment or decree based on
acceleration has been obtained, the Holders of a majority in principal amount of
the Outstanding Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration of acceleration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on, and any Additional Amounts with
respect to, all Securities of that series and any coupons appertaining thereto,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed therefor in
such Securities (in the case of Original Issue Discount Securities, the
Securities' Yield to Maturity),
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest and any Additional Amounts at the rate or rates
prescribed therefor in such Securities (in the case of Original Issue Discount
Securities, the Securities' Yield to Maturity), and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series which
have become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 512.
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No such rescission or annulment shall extend to or otherwise 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
(1) default is made in the payment of any interim principal
payments or any installment of interest on, or any Additional Amounts with
respect to, any Security of any series and any coupons appertaining thereto when
such interim principal payments, interest or Additional Amounts shall have
become due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the final maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, the whole amount then due and payable on
such Securities and coupons for principal (and premium, if any) at final
maturity, interim principal payments, interest and Additional Amounts and, to
the extent that payment of such interest shall be legally enforceable, interest
on any overdue principal (and premium, if any) at final maturity and on any
overdue interim principal payments, interest and Additional Amounts, at the rate
or rates prescribed therefor in such Securities (or in the case of Original
Issue Discount Securities, the Securities' Yield to Maturity), and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series and any related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the
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Company or any other obligor upon the Securities or the property of the Company
or of such other obligor, the Trustee (irrespective of whether the principal (or
lesser amount in the case of Original Issue Discount Securities) 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), interest
or Additional Amounts) 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
(or lesser amount in the case of Original Issue Discount Securities) (and
premium, if any) and interest and any Additional Amounts owing and unpaid in
respect of the Securities or any coupons appertaining thereto 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 monies or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
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 proceedings; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claim under this Indenture or the
Securities or coupons may be prosecuted and enforced by the Trustee without
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
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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), interest or any Additional Amounts, upon presentation of the
Securities or coupons, or both as the case may be, and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest and any Additional Amounts on
the Securities and coupons 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 and coupons for
principal (and premium, if any), interest and Additional Amounts, respectively;
and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
To the fullest extent allowed under applicable law, if for the
purpose of obtaining judgment against the Company in any court it is necessary
to convert the sum due in respect of the principal of (or premium, if any) or
interest on the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Business Day next
preceding that on which final judgment is given. Neither the Company nor the
Trustee shall be liable for any shortfall nor shall it benefit from any windfall
in payments to Holders of Securities under this Section caused by a change in
exchange rates between the time the amount of a judgment against it is
calculated as above and the time the Trustee converts the Judgment Currency into
the Required Currency to make payments under this Section to Holders of
Securities, but payment of such judgment shall discharge all amounts owed by the
Company on the claim or claims underlying such judgment.
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) an Event of Default with respect to Securities of such series
shall have occurred and be continuing and such Holder has previously given
written notice to the Trustee of such continuing Event of Default;
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(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 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any, on)
and (subject to Section 307) interest on and any Additional Amounts with respect
to such Security or payment of such coupon on the Stated Maturity or 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. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
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SECTION 510. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities or coupons to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 511. Control by Holders.
With respect to Securities of any series, the Holders of 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, relating to or arising under an Event of Default
described in clause (1), (2), (3) or (8) of Section 501, and with respect to all
Securities, the Holders of a majority in principal amount of all Outstanding
Securities shall have the right to direct the time, method and place of
conducting any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, not relating to or arising under such an Event of
Default, provided that in each such case
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 512. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may, on behalf of the Holders of all the Securities of
such series, waive any past default described in clause (1), (2), (3) or (8) of
Section 501 with respect to such series and its consequences, and the Holders of
a majority in principal amount of all Outstanding Securities may on behalf of
the Holders of all Securities waive any other past default hereunder and its
consequences, except in each case a default
(1) in the payment of the principal of (or premium, if any) or
interest on, or any Additional Amounts with respect to, any Security, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder
of each Outstanding Security affected.
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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; provided that no such waiver shall extend to or
otherwise affect any subsequent or other default or impair any right consequent
thereon.
SECTION 513. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security or coupon 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 or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on, or any Additional Amounts with respect to, any Security
or the payment of any coupon on or after the Stated Maturity or Maturities
expressed in such Security or coupon (or, in the case of redemption, on or after
the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) With respect to the Securities of any series, except during
the continuance of an Event of Default with respect to the Securities of
such series,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the
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Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing
with respect to the Securities of any series, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the
same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a majority in principal amount of
the Outstanding Securities of any series or of all series, determined
as provided in Section 511, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or indemnity satisfactory to it against such
risk or liability is not assured to it.
(e) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall give notice of such
default hereunder known to the Trustee to all Holders of Securities of such
series in the manner provided in Section 107, unless such default
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shall have been cured or waived; provided, however, that, except in the case of
a default in the payment of the principal of (or premium, if any) or interest
on, or any Additional Amounts with respect to, any Security of such series or in
the payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) 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, coupon, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the 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;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice,
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request, direction, consent, order, bond, debenture, note, coupon, 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; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and, except for any Affiliates of the Trustee, 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.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and coupons and,
subject to Sections 608 and 613, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time compensation agreed
to with 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
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Trustee in accordance with any provision of this Indenture (including the
compensation and the reasonable expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee and each of its directors, officers,
employees, agents and/or representatives for, and to hold each of them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on each of their part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending themselves against
any claim or liability in connection with the exercise or performance of
any of the Trustee's powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of, premium, if any, or interest, if
any, on, or any Additional Amounts with respect to, particular Securities.
Any expenses and compensation for any services rendered by the
Trustee after the occurrence of an Event of Default specified in clause (5) or
(6) of Section 501 shall constitute expenses and compensation for services of
administration under all applicable federal or state bankruptcy, insolvency,
reorganization or other similar laws.
The provisions of this Section shall survive the termination of
this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest,
as defined in this Section, with respect to the Securities of any series,
it shall, within 90 days after ascertaining that it has such conflicting
interest, either eliminate such conflicting interest or resign with respect
to the Securities of that series in the manner and with the effect
hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the Securities
of any series, the Trustee shall, within ten days after the expiration of
such 90-day period, transmit by mail to all Holders of Securities of that
series, as their names and addresses appear in the Security Register,
notice of such failure.
(c) For the purposes of this Section, the term "conflicting
interest" shall have the meaning specified in Section 310(b) of the Trust
Indenture Act and the Trustee shall comply with Section 310(b) of the Trust
Indenture Act; provided that there shall be excluded from the operation of
Section 310(b)(1) of the Trust Indenture Act with respect to the Securities
of any series any indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the
Company are outstanding, if the requirements for such exclusion set forth
in Section 310(b)(1) of the Trust Indenture Act are met. For purposes of
the preceding sentence, the
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optional provision permitted by the second sentence of Section 310(b)(1) of the
Trust Indenture Act shall be applicable.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $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 the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the resigning Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a)
after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the
Company or by any such Holder of Securities, or
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(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 Section 513, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to 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) and such successor Trustee or Trustees
shall comply with the applicable requirements of Section 611. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(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 by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses appear in the
Security Register. 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 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
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(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.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication
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and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent indicated
therein.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which shall
be authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer or partial
redemption or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference
is made in this Indenture to the authentication and delivery of Securities by
the Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, or in the case of an Authenticating Agent with
respect to Securities issuable as Bearer Securities, under the laws of any
country in which such Bearer Securities may be offered, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 or equivalent amount expressed in a foreign currency
and subject to supervision or examination by Federal or State authority or
authority of such country. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to 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.
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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 mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. 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 614.
If an appointment is made pursuant to this Section 614, the Securities
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
______________________________________,
as Trustee
By ___________________________________,
as Authenticating Agent
By ___________________________________
Authorized Signatory."
Notwithstanding any provision of this Section 614 to the contrary, if
at any time any Authenticating Agent appointed hereunder with respect to any
series of Securities shall not also be acting as the Security Registrar
hereunder with respect to any series of Securities, then, in addition to all
other duties of an Authenticating Agent hereunder, such Authenticating Agent
shall also be obligated: (i) to furnish to the Security Registrar promptly all
information necessary to enable the Security Registrar to maintain at all times
an accurate and current Security Register; and (ii) prior
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to authenticating any Security denominated in a foreign currency, to ascertain
from the Company the units of such foreign currency that are required to be
determined by the Company pursuant to Section 302.
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will furnish or
cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular Record Date
relating to that series (or, if there is no Regular Record Date relating to that
series, on January 1 and July 1), a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of that series as
of such dates, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content, such list to be dated as of a date not more than 15 days prior
to the time such list is furnished;
provided that so long as the Trustee is the Security Registrar, the Company
shall not be required to furnish or cause to be furnished such a list to the
Trustee.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of each series contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders of each series received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy any list furnished to
it as provided in Section 701 upon receipt of a new list so furnished.
(b) Holders of Securities may communicate pursuant to the Trust Indenture
Act with other Holders with respect to their rights under this Indenture or
under the Securities.
(c) Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 702(b), regardless of the source from
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which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the year after
the initial issuance of Securities hereunder, the Trustee shall transmit by mail
to Holders a brief report dated as of such May 15 that complies with Section
313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313 (b) of the Trust Indenture
Act.
(c) Reports pursuant to this Section shall be transmitted by mail:
(1) to all Holders of Registered Securities, as the names and addresses
of such Holders appear in the Security Register;
(2) to such Holders of Bearer Securities as have, within the two years
preceding such transmissions, filed their names and addresses with the
Trustee for that purpose; and
(3) except in the case of reports pursuant to Subsection (b) of this
Section, to each Holder of a Security whose name and address is preserved
at the time by the Trustee, as provided in Section 702(a).
(d) A copy of each report pursuant to Subsection (a) or (b) of this Section
703 shall, at the time of its transmission to Holders, be filed by the Trustee
with each stock exchange upon which any Securities are listed, with the
Commission and with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, and shall otherwise comply with Section 314(a)
of the Trust Indenture Act.
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ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALE OF ASSETS
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or sell, lease, convey, transfer or otherwise dispose of all or substantially
all of its assets to any Person, and shall not permit any Person to consolidate
or merge into the Company or sell, lease, convey, transfer or otherwise dispose
of all or substantially all of its assets to the Company, unless:
(1) the Person formed by or surviving such consolidation or merger (if
other than the Company), or to which such sale, lease, conveyance, transfer
or other disposition shall be made (the "Successor"), is a corporation,
partnership or trust organized and existing under the laws of the United
States or any State thereof or the District of Columbia and the Successor
assumes, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any) and interest (including all
Additional Amounts, if any) on all the Securities and the performance of
every covenant of this Indenture on the part of the Company to be performed
or observed and all other obligations of the Company hereunder;
(2) immediately after giving effect to such transaction and treating
any Debt that becomes an obligation of the Company or its Subsidiaries as a
result thereof as having been incurred by the Company or its Subsidiaries
at the time of such transaction, no Event of Default and no event which,
after notice or lapse of time or both, would become an Event of Default,
shall have occurred and be continuing;
(3) if, as a result of such transaction, property or assets of the
Company or its Subsidiaries would become subject to a Lien prohibited by
Section 1005 hereof, the Company or the Successor shall have secured the
Securities as required by Section 1005; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such merger, consolidation,
sale, lease, conveyance, transfer or other disposition and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture, comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other Person or any conveyance, transfer or lease of the assets of the
Company substantially as an
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entirety in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of such lease, the Company shall be relieved
of all obligations and covenants under this Indenture and the Securities and
coupons.
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 add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities and any coupons appertaining
thereto (and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly being
included solely for the benefit of such series); or
(2) to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee or otherwise secure any series of the Securities or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the protection of the
Holders with respect to all or any series of the Securities (and, if such
Event of Default is applicable to less than all series of Securities,
specifying the series to which such Event of Default is applicable); or
(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; or
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(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 adversely affected by
such change in or elimination of such provision; or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(7) 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 Section 401; provided,
however, that any such action shall not adversely affect the interest of
the Holders of Securities of such series or any other series of Securities;
or
(8) to evidence the succession of another Person to the Company and
the assumption by any such successor Person of the obligations of the
Company herein and in the Securities; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(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 other provisions
as may be made shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of a majority in principal amount of
the Outstanding Securities of all series affected by such supplemental indenture
(acting as one class), by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof (or premium, if any, thereon) or the rate of interest
thereon, any Additional Amounts with respect thereto or any
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premium payable upon the redemption thereof, or change any obligation of
the Company to pay Additional Amounts (except as contemplated by Section
801(1) and permitted by Section 901(1)), or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502, or change any Place of Payment where, or the coin,
currency, currencies (including composite currencies) or currency unit or
units of payment in which, any Security or any premium or any interest
thereon or Additional Amounts with respect thereto is payable, alter the
method of computation of any amount payable upon redemption, repayment or
purchase, if any, of any Security, or impair the right to institute suit
for the enforcement of any such payment on or with respect to any Security,
or
(2) reduce the percentage in principal amount of Outstanding
Securities, the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is required
for any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture, or
(3) modify any of the provisions of this Section 902, Section 512 or
Section 1007, except to increase any such percentage or to provide with
respect to any particular series the right to condition the effectiveness
of any supplemental indenture as to that series on the consent of the
Holders of a specified percentage of the aggregate principal amount of
Outstanding Securities of such series (which provision may be made pursuant
to Section 301 without the consent of any Holder) or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section 902 and Section 1007, or
the deletion of this proviso, in accordance with the requirements of
Sections 611 (b) and 901(7).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
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SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
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, immunities or liabilities 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 and any coupons appertaining thereto
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 and any coupons appertaining thereto.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any), interest on and any Additional
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Amounts with respect to 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 due on and Additional Amounts payable with
respect to 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 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 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 Borough of Manhattan, 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 for Registered Securities, 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 Bearer
Securities of that series and related coupons may be presented and surrendered
for payment (including payment of any Additional Amounts with respect to Bearer
Securities of that series); provided, however, that if the Securities of that
series are listed on the International Stock Exchange of the United Kingdom and
the Republic of Ireland Limited, the Luxembourg Stock Exchange or any other
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent for the Securities of that
series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of that series are
listed on such exchange, and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for 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 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 that series and the related coupons
may be presented and surrendered for payment (including payment of any
Additional Amounts with respect to Bearer Securities of that series) at the
office of any Paying Agent for such
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series located outside the United States, and the Company hereby appoints the
Trustee as its office or agency to receive such presentations, surrenders,
notices and demands.
No payment of principal, premium or interest on, or Additional Amounts
with respect to, 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, nor shall any payments be made in respect of Bearer Securities or
coupons appertaining thereto pursuant to the presentation to the Company or its
designated Paying Agents within the United States; provided, however, that, if
the Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium and interest on any Bearer Security (including any
Additional Amounts payable on Securities of such series) shall be made at the
office of the Company's Paying Agent in The Borough of Manhattan, The City of
New York, if (but only if) payment in Dollars of the full amount of such
principal, premium, interest or Additional Amounts, as the case may be, at all
offices or agencies outside the United States maintained for the purpose by the
Company in accordance with this Indenture is illegal or effectively precluded by
exchange controls or 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
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 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 coupons appertaining thereto, it
will, on or before each due date of the principal of (and premium, if any) or
interest on or any Additional Amounts with respect to any of the Securities of
that series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee 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 appertaining thereto, the Company
will, on or before each due date of the principal of (and premium, if any) or
interest on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
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The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any), interest on or any Additional Amounts with respect to
Securities of that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any), interest on or any Additional
Amounts with respect to the Securities of that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall, unless otherwise required by mandatory provisions of applicable
escheat, or abandoned or unclaimed property law, 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 and coupon appertaining thereto shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper in
The Borough of Manhattan, The City of New York and in such other Authorized
Newspapers as the Trustee shall deem appropriate, notice that such money remains
unclaimed and that, after a date specified herein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will, unless otherwise required by mandatory provisions of
applicable escheat, or abandoned or unclaimed property law, be repaid to the
Company.
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SECTION 1004. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 1005. Liens.
So long as any of the Securities are outstanding, the Company will
not, and will not permit any Subsidiary of the Company to, issue, create, incur,
assume or suffer to exist any Lien securing Debt on any property or asset of the
Company or any Subsidiary of the Company (whether such property or asset is now
existing or owned or hereafter created or acquired) without making effective
provision whereby the Securities of any series then or thereafter outstanding
will be secured by a Lien equally and ratably with (or, at the Company's option,
prior to) any and all obligations thereby secured for so long as any such
obligations shall be so secured; provided, however, that this restriction shall
not apply to any of the following:
(a) any Liens existing on the date of this Indenture or provided for
in after-acquired property clauses under the terms of agreements existing
on such date;
(b) any Liens on any property or assets to secure Debt incurred for
the purpose of financing all or any part of the consideration used to
acquire such property or assets and incurred prior to, at the time of, or
within twelve months after such acquisition;
(c) any Liens on property or assets to secure Debt incurred for the
purpose of financing all or any part of the cost of construction,
improvement, development or expansion of such property or assets,
including, without limitation, Liens to secure Debt incurred in connection
with the construction, installation or financing of pollution control or
abatement facilities or other forms of industrial revenue or development
bond financing, which Liens extend solely to the property that is subject
thereof;
(d) any Liens on any property or assets existing at the time of
acquisition thereof by the Company or any Subsidiary of the Company,
including acquisition through merger, consolidation or the purchase of
property or assets; provided that such Liens do not extend to other
property or assets of the Company or any Subsidiaries of the Company;
(e) any Liens resulting from a judgment or award contested diligently
and in good faith;
(f) any Liens to secure Debt issued or guaranteed by the United States
or any State or any department, agency or instrumentality of either,
provided that such Liens extend solely to the property or asset that is the
subject thereof;
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(g) any Liens upon receivables and other assets or properties of the
Company or its Subsidiaries and the proceeds thereof that may be granted or
arise in connection with the transfer, securitization or factoring of some
or all of the receivables of the Company or any Subsidiary of the Company;
(h) any Liens that secure only Debt owing by a Subsidiary of the
Company to the Company or to another Subsidiary of the Company or by the
Company to a Subsidiary of the Company;
(i) any Liens required by any contract or statute in order to permit
the Company or any Subsidiary of the Company to perform any contract or
subcontract made by it with or at the request of the United States, any
State or any department, agency or instrumentality of either;
(j) any Ordinary Course Liens; and
(k) any Liens to secure Debt incurred to extend, refinance renew,
replace or refund (or successive extensions, refinancings, renewals,
replacements or refunding) of any Debt secured by a Lien referred to in the
foregoing clauses (a) through (j), so long as the principal amount of such
Debt so secured is not increased.
Notwithstanding the foregoing, the Company and any one or more
Subsidiaries may, without equally and ratably securing the Securities, issue,
create, incur, assume or suffer to exist or guarantee any Debt secured by Liens
in addition to those permitted by clause (a) through (k) above and renew, extend
or replace such Liens, provided that aggregate principal amount of Debt so
secured by any Lien plus any Attributable Debt does not at any one time exceed
15% of Consolidated Net Tangible Assets, as shown on the balance sheet of the
Company as of the end of the most recent fiscal quarter prior to the incurrence
of the Debt for which a balance sheet is available.
In case the Company or any Subsidiary shall propose to pledge,
mortgage, hypothecate or grant a security interest in any property or assets
owned by the Company or any Subsidiary to secure any Debt, other than as
permitted in this Section 1005, the Company will prior thereto give written
notice thereof to the Trustee, and the Company will, or will cause such
Subsidiary to, prior to or simultaneously with such pledge, mortgage,
hypothecation or grant of security interest, by supplemental indenture executed
to the Trustee (or to the extent legally necessary to another trustee or
additional or separate trustee), in form satisfactory to the Trustee,
effectively secure (for so long as such other Debt shall be so secured) all the
Securities equally and ratably with such Debt and with any other indebtedness
similarly entitled to be equally and ratably secured. Such supplemental
indenture shall contain the provisions concerning the possession, control,
release and substitution of mortgaged and pledged property and securities and
other appropriate matters which are required by the Trust Indenture Act (as in
effect at the date of execution of such supplemental indenture) to be included
in a secured indenture qualified under the
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Trust Indenture Act. The Company shall, in connection with the execution of any
such supplemental indenture, deliver to the Trustee an Opinion of Counsel to the
effect that such supplemental indenture satisfies the requirements of this
Section and constitutes a legal, valid, binding and enforceable obligation of
the Company or such Subsidiary, as the case may be.
For the purpose of this Section 1005, "security interest" shall
include the interest of the lessor under a lease with a term of three years or
more that should be, in accordance with generally accepted accounting
principles, recorded as a capital lease, and any such lease of property or
assets not acquired from the Company or any Subsidiary in contemplation of such
lease shall be treated as though the lessee had purchased such property or
assets from the lessor.
SECTION 1006. Sale/Leaseback Transactions.
The Company covenants and agrees that neither it nor any of its
Subsidiaries will enter into any Sale/Leaseback Transaction with any Person
(other than the Company and its Subsidiaries) unless either:
(i) the Company or such Subsidiary would be entitled, pursuant to
Section 1005, to incur Debt, in a principal amount equal to the
Attributable Debt with respect to such Sale/Leaseback Transaction, secured
by a Lien on the property subject to such Sale/Leaseback Transaction,
without equally and ratably securing the Securities;
(ii) after the date of the original issuance of the Securities and
within a period commencing six months prior to the effective date of such
Sale/Leaseback Transaction and ending six months thereafter, the Company or
a Subsidiary of the Company has expended or will expend for any property
(including amounts expended for the acquisition of such property, and for
additions, alterations, improvements and repairs thereto) an amount equal
to all or a portion of the net proceeds received from such transaction and
elects to designate such amount as a credit against the application of the
restrictions set forth herein and in Section 1005 to such transaction (with
any such amount not being so designated to be applied as set forth in
clause (iii) below); or
(iii) the Company, during or immediately after the expiration of the
six month period following the effective date of any such Sale/Leaseback
Transaction, applies to the voluntary defeasance or retirement of the
Securities of any series or any of the Company's other Senior Indebtedness,
an amount equal to the greater of the net proceeds of the sale or transfer
of the property leased in such transaction or the Attributable Debt as
determined by the Company in good faith and certified in an Officers'
Certificate delivered to the Trustee at the time of entering into such
transaction (in either case adjusted to reflect the remaining term of the
lease and any amount utilized by the Company or its Subsidiaries as set
forth in clause (ii) above), less an amount equal to the principal amount
of Securities of any series delivered within six months after the date of
such arrangement to the Trustee for retirement and cancellation, excluding
retirements of Securities of any series or of any Senior
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Indebtedness pursuant to mandatory sinking fund or mandatory prepayment
provisions or by payment at maturity.
SECTION 1007. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof so long as any
Security is outstanding hereunder, an Officers' Certificate, stating that a
review of the activities of the Company during such year and of performance
under this Indenture has been made under the supervision of the signers thereof
and whether or not to the best of their knowledge, based upon such review, the
Company is in default in the performance, observance or fulfillment of any of
its covenants and other obligations under this Indenture, and if the Company
shall be in default, specifying each such default known to them and the nature
and status thereof. One of the officers signing the Officers' Certificate
delivered pursuant to this Section 1007 shall be the principal executive,
financial or accounting officer of the Company.
For purposes of this Section, such compliance shall be determined
without regard to any period of grace or requirement of notice provided under
this Indenture.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1004, 1005 and 1006, or any covenant
added for the benefit of any series of Securities as contemplated by Section 301
(unless otherwise specified pursuant to Section 301) if before or after the time
for such compliance the Holders of a majority in principal amount of the
Outstanding Securities of all series affected by such omission (acting as one
class) shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
SECTION 1009. Additional Amounts.
If the Securities of a series expressly provide for the payment of
Additional Amounts, the Company will pay to the Holder of any Security of such
series or any coupon appertaining thereto Additional Amounts as expressly
provided therein. Whenever in this Indenture there is mentioned, in any
context, the payment of the principal of or any premium or interest on, or in
respect of, any Security of any series or payment of any related coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided for in this Section to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section and express mention of the payment of Additional
Amounts (if applicable)
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in any provisions hereof shall not be construed as excluding Additional Amounts
in those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of Additional
Amounts, at least ten days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least ten days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company shall furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or coupons and the Company will
pay to such Paying Agent the Additional Amounts required by this Section. The
Company covenants to indemnify the Trustee and any Paying Agent for, and to hold
them harmless against any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section 1009.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated 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 a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall, a
reasonable period 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. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption
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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 (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series or of the principal amount
of global Securities of such series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
107 to each Holder of Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(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) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
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(5) the place or places where such Securities, together in the case of
Bearer Securities with all coupons appertaining thereto, are to be
surrendered for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case,
(7) that, unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for redemption must be accompanied by
all coupons appertaining thereto maturing subsequent to the date fixed for
redemption 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,
(8) 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 305 or otherwise,
the last date, as determined by the Company, on which such exchanges may be
made, and
(9) the "CUSIP" number, if applicable.
A notice of redemption as contemplated by Section 107 need not
identify particular Registered Securities to be redeemed. Notice of redemption
of Securities to be redeemed at the election of the Company shall be given by
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or before 10:00 a.m., New York City time, on any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, and any Additional Amounts with respect to, all the
Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be redeemed. Upon surrender of any such Security
for redemption in accordance with said notice, together with all coupons
appertaining thereto, if any, appertaining thereto maturing after the
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Redemption Date, such Security shall be paid by the Company at the Redemption
Price, together with accrued interest (and any Additional Amounts) to the
Redemption Date; provided, however, that all payments on Bearer Securities shall
be made only in the manner provided in Section 1002 for payments on Bearer
Securities; and provided, further, that installments of interest 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 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons appertaining thereto 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
appertaining thereto, or the surrender of such missing coupon or coupons
appertaining thereto 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 (and any Additional Amounts with respect thereto)
represented by coupons appertaining thereto 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 appertaining thereto.
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 prescribed
therefor in the Security or, in the case of Original Issue Discount Securities,
the Securities' Yield to Maturity.
SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his or her 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 Registered Security or Securities of the
same series and Stated Maturity, 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.
SECTION 1108. Purchase of Securities.
Unless otherwise specified as contemplated by Section 301, the Company
and any Affiliate of the Company may at any time purchase or otherwise acquire
Securities or coupons appertaining thereto in the open market or by private
agreement; provided that purchases or other
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acquisitions of Bearer Securities or coupons appertaining thereto by the Company
or any Affiliate of the Company may be made only outside the United States, and
payments therefor may be made only upon surrender of such Bearer Securities or
coupons appertaining thereto at a location outside the United States and only in
the manner provided for payments on Bearer Securities in Section 1002. Such
acquisition shall not operate as or be deemed for any purpose to be a redemption
of the indebtedness represented by such Securities or coupons appertaining
thereto. Any Securities or coupons appertaining thereto purchased or acquired
by the Company may be delivered to the Trustee and, upon such delivery, the
indebtedness represented thereby shall be deemed to be satisfied. Section 309
shall apply to all Securities and coupons so delivered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." Unless otherwise provided by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Securities of a series which have been redeemed either
at the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Securities of such series required
to be made pursuant to the terms of such Securities as provided for by the terms
of such series; provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking payment
shall be reduced accordingly.
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SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior (unless a shorter period shall be
satisfactory to the Trustee) to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivery of or by crediting Securities of that series pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any or all 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 1302. 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 1301, to be
held at such time and at such place in New Orleans, Louisiana, in The
Borough of Manhattan, The City of New York, in London or in any other
location 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 in Section 107, not less
than 20 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 aggregate principal amount of the
Outstanding Securities of any series, shall have requested the Trustee for
any such series to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 1301, 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
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publication of the notice of such meeting within 30 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 New Orleans, Louisiana, in The Borough of Manhattan, The City of New
York, or in London, for such meeting and may call such meeting for such purposes
by giving notice thereof as provided in Subsection (a) of this Section.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series. 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 ten 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 ten days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Subject to Section 1305(d), notice of
the reconvening of any adjourned meeting shall be given as provided in Section
1302(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 an adjourned meeting shall state expressly that Persons
entitled to vote a majority in principal amount of the Outstanding Securities of
such series shall constitute a quorum.
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 a
majority in aggregate principal amount of the Outstanding Securities of that
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 that is less than a majority in aggregate principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly
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reconvened at which a quorum is present as aforesaid by the affirmative vote of
the Holders of such specified percentage in aggregate principal amount of the
Outstanding Securities of that series.
Except as limited by the proviso to Section 902, any resolution passed
or decision taken at any meeting of Holders of Securities of any series duly
held in accordance with this Section 1304 shall be binding on all the Holders of
Securities of such series and the coupons appertaining thereto, whether or not
present or represented at the meeting.
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) The holding of Securities shall be proved in the manner specified
in Section 105 and the appointment of any proxy shall be proved in the manner
specified in Section 105 or by having the signature of the person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized by
Section 105 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 105 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 Comcany or by Holders of Securities as provided in Section 1302(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall 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 aggregate 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 and each
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or as a proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1302 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in aggregate 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 1306. 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
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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 such
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 such
notice was given as provided in Section 1302 and, if applicable, Section 1304.
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 instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
STEWART ENTERPRISES, INC.
[CORPORATE SEAL] By:______________________________
Name:
Title:
CITIBANK, N.A.
[CORPORATE SEAL] By:______________________________
Name:
Title:
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STATE OF _________ (S)
(S) ss.
PARISH OF ________ (S)
On the ____ day of _____________, _____, before me personally came
_____________, to me known, who, being by me duly sworn, did depose and say that
[he/she] is ________________ of STEWART ENTERPRISES, INC., one of the entities
described in and which executed the foregoing instrument; that [he/she] knows
the seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation, and that [he/she] signed [his/her] name thereto by like
authority.
___________________
Notary Public
[NOTARIAL SEAL]
STATE OF ___________ (S)
(S) ss.
COUNTY OF __________ (S)
On the ___ day of _______, ____, before me personally came _________,
to me known, who, being by me duly sworn, did depose and say that [he/she] is
______________ of CITIBANK, N.A., one of the entities described in and which
executed the foregoing instrument; that [he/she] knows the seal of said entity;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said entity, and that [he/she]
signed [his/her] name thereto by like authority.
__________________
Notary Public
[NOTARIAL SEAL]
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EXHIBIT A
FORM OF CERTIFICATE TO BE
GIVEN BY OWNER OF SECURITY OR BENEFICIAL OWNER OF
INTEREST IN A GLOBAL SECURITY
STEWART ENTERPRISES, INC.
[TITLE OF SECURITIES]
(THE "SECURITIES")
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities that are held by the undersigned or held
by you for the account of the undersigned (i) are owned by person(s) that are
not citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United States
persons"), (ii) are owned by United States person(s) that (A) are foreign
branches of United States financial institutions (as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing for
their own account or for resale, or (B) acquired 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
certifies, on its own behalf or through its agent, that it 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 (iii) are owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)) and in addition if the owner of the Securities 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.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify that, except as set forth below, (i) in the
case of debt securities, the Securities are beneficially owned by (a) non-U.S.
person(s) or (b) U.S. person(s) who purchased the Securities in transactions
which did not require registration under the Act; or (ii) in the case of equity
securities, the Securities are owned by (x) non-U.S. person(s) (and such
person(s) are not acquiring the Securities for the account or benefit of U.S.
person(s)) or (y) U.S. person(s) who purchased the Securities in a transaction
which did not require registration under the Act. If this certification is
being delivered in connection with the exercise of warrants pursuant to Section
230.902(m) of Regulation S under the Act, then this is further to certify that,
except as set forth below, the Securities are being exercised by and on behalf
of non-U.S. person(s). As used in this paragraph the term "U.S. person" has the
meaning given to it by Regulation S under the Act.
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<PAGE>
As used herein, "United States" means the United States of America
(including the States and District of Columbia); and its "possessions" including
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 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.
This certification excepts and does not relate to $______________ of
such interest in the above Securities in respect of which we are not able to
certify and as to which we understand exchange and delivery of definitive
Securities (or, if relevant, exercise of any rights or collection of any
interest) cannot be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
*Dated: __________________, _____
NAME OF PERSON MAKING CERTIFICATION
By:_______________________________
As, or as Agent for, the
beneficial owner(s) of the
Securities to which this
Certificate relates
By:_______________________________
As, or as Agent for, the
financial institution (if any)
through which a United States
Person acquired the Securities
to which this Certificate relates
___________________
*To be dated no earlier than the Certification Date.
A-2
<PAGE>
EXHIBIT B
FORM OF CERTIFICATION TO BE GIVEN
BY EUROCLEAR OR CEDEL S.A.
STEWART ENTERPRISES, INC.
[TITLE OF SECURITIES]
(THE "SECURITIES")
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture, dated as of _______________, 1996,
between Stewart Enterprises, Inc. and Citibank, N.A., as of the date hereof,
[ ] principal amount of the above captioned Securities (i) is owned by
persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States persons"), (ii) is owned by United States persons that (A) are
foreign branches of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (B) 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 has certified, on its own behalf or through its agent, that it 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 (iii) is
owned by United States or foreign financial institutions for purposes of resale
during the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and to the further effect that the United States or
foreign 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.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify with respect to the principal amount of
Securities set forth above that, except as set forth below, we have received in
writing, by tested telex or by electronic transmission, from our Member
Organizations entitled to a portion of such principal amount, certifications
with respect to such portion, substantially to the effect set forth in the
Indenture.
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any interest)
any portion of the temporary global Security excepted in such certifications and
(ii) that 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,
B-1
<PAGE>
if relevant, exercise of any rights or 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 connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification or a
copy hereof to any interested party in such proceedings.
Dated:______________, _____
(dated the Exchange Date or the
Interest Payment Date)
__________________________________________
as operator of the Euroclear System
[Morgan Guaranty Trust Company of New York,
Brussels Office]
or
[CEDEL S.A.]
By _______________________________________
B-2
<PAGE>
JONES, WALKER
WAECHTER, POITEVENT
CARRERE & DENEGRE, L.L.P.
October 18, 1996
Stewart Enterprises, Inc.
110 Veterans Memorial Boulevard
Metairie, Louisiana 77005
Re: Stewart Enterprises, Inc.
Registration Statement on Form S-3
$300,000,000 of Debt Securities
Gentlemen:
We have acted as counsel to Stewart Enterprises, Inc. ("Stewart") in
connection with the preparation of a registration statement on Form S-3 (the
"Registration Statement") filed by Stewart with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act"), on or about the date hereof relating to the registration of unsecured
debt securities ("Debt Securities") which may be issued from time to time in one
or more series up to a maximum aggregate initial offering price of $300,000,000
under an Indenture (the "Indenture") between Stewart and Citibank, N.A., New
York, New York (the "Trustee") to be entered into prior to the issuance of the
Debt Securities.
In connection with rendering the opinions expressed below, we have examined
original, photostatic or certified copies of (i) Stewart's Restated Articles of
Incorporation and Bylaws, each as amended to date, (ii) the unanimous consent of
the Board of Directors of Stewart dated October 18, 1996 authorizing the
offering of the Debt Securities and other actions in connection therewith (the
"Consent"), (iii) the form of the Indenture and (iv) such other records of
Stewart, certificates of Stewart's officers and public officials, and such other
documents as we have deemed relevant. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies and the authenticity of the originals of
such documents. We have also assumed the legal capacity of all natural persons
signing all documents in connection with which this opinion is rendered, and the
authority of such persons signing on behalf of the parties thereto other than
Stewart. As to any facts material to the opinions expressed herein which we
have not independently established or verified, we have relied upon
representations of officers and other representatives of Stewart and others.
<PAGE>
Stewart Enterprises, Inc.
October 18, 1996
Page 2
Based upon the foregoing qualifications, assumptions and limitations, and
subject to the further qualifications and comments set forth below, we are of
the opinion that:
1. Stewart is a corporation duly organized, validly existing and in good
standing under the laws of the State of Louisiana, and has all requisite
corporate power to issue the Debt Securities.
2. The Debt Securities to be issued under the Indenture have been duly
authorized by Stewart's Board of Directors and will be valid and binding
obligations of Stewart (except to the extent the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer, fraudulent conveyance or other similar laws affecting the
enforcement of creditors' rights generally, public policy considerations that
may limit the rights of parties to obtain certain remedies, and except that the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought) when (i) the Registration
Statement, as finally amended, shall have become effective under the Securities
Act of 1933, as amended, and the Indenture shall have been qualified under the
Trust Indenture Act of 1939, as amended, and duly executed and delivered by
Stewart and the Trustee, (ii) Stewart's Board of Directors, the Pricing
Committee thereof, or an officer or officers duly authorized by such Pricing
Committee, shall have taken all necessary corporate action to approve the
issuance of such Debt Securities and to establish the terms and conditions
thereof, and (iii) such Debt Securities shall have been duly executed by Stewart
and authenticated as provided in the Indenture and shall have been duly
delivered to the purchasers thereof against payment of the agreed consideration
therefor.
The opinions rendered herein are specifically limited to currently
applicable United States federal law and the laws of the States of New York and
Louisiana and assume that, as of any relevant time, there will not have occurred
any change in law affecting the validity or enforceability of the Debt
Securities. We assume no obligation to revise or supplement this opinion should
such currently applicable laws be changed by legislative action, judicial
decision or otherwise. We express no opinion as to the application of the
securities or blue sky laws of the various states to the sale of any Debt
Securities.
This opinion is furnished to you in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or otherwise
relied upon for any other purpose.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to us in the prospectus forming a part thereof
under the caption "Legal Matters." In giving this consent, we do not admit that
we are within the category of persons whose consent is required
<PAGE>
Stewart Enterprises, Inc.
October 18, 1996
Page 3
under Section 7 of the Securities Act of 1933, as amended, or the general rules
and regulations of the Commission promulgated thereunder.
Yours very truly,
JONES, WALKER, WAECHTER,
POITEVENT, CARRERE & DENEGRE, L.L.P.
/s/ L.R. McMILLAN, II
By:__________________________
L.R. McMillan, II
<PAGE>
EXHIBIT 12.1
STEWART ENTERPRISES, INC.
AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEARS ENDED OCTOBER 31, JULY 31,
------------------------------------------------------------- ---------------------
1991 1992 1993 1994 1995 1995 1996
------------------------------------------------------------- ---------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Net earnings from continuing
operations before income taxes $13,708 $20,942 $29,569 $42,198 $41,500 $26,037 $62,120
Fixed charges:
Interest expense 9,162 5,414 6,540 8,877 22,815 17,249 18,580
Interest portion of lease expense 376 456 585 935 1,343 987 1,019
------- ------- ------- ------- ------- ------- -------
Total fixed charges 9,538 5,870 7,125 9,812 24,158 18,236 19,599
------- ------- ------- ------- ------- ------- -------
Net earnings from continuing operations
before income taxes and fixed charges $23,246 $26,812 $36,694 $52,010 $65,658 $44,273 $81,719
======= ======= ======= ======= ======= ======= =======
Ratio of earnings to fixed charges 2.44 4.57 5.15 5.30 2.72 2.43 4.17
======= ======= ======= ======= ======= ======= =======
</TABLE>
<PAGE>
EXHIBIT NO. 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
on Form S-3 of our reports dated December 13, 1995, except for Note 15 to the
financial statements as to which the date is December 29, 1995, on our audits
of the consolidated financial statements and financial statement schedule of
Stewart Enterprises, Inc. and Subsidiaries which reports are included in the
Company's 1995 Annual Report on Form 10-K. We also consent to the reference to
our firm under the caption "Experts."
/s/ Coopers & Lybrand, L.L.P.
--------------------------------
COOPERS & LYBRAND L.L.P.
New Orleans, Louisiana
October 18, 1996
<PAGE>
EXHIBIT NO. 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
of Stewart Enterprises, Inc. on Form S-3 of our report dated March 21, 1996 on
our audit of the consolidated financial statements of "Societe Financiere
Bourgie (1991) Ltee" as of December 31, 1995 and for the year then ended which
report is incorporated therein by reference from the Stewart Enterprises, Inc.
filing on Form 8-K dated September 30, 1996 and filed October 9, 1996. We also
consent to the reference to our firm under the caption "Experts."
/s/ Grou, La Salle + Associes
- ------------------------------
S.E.N.C.
Chartered Accountants
St. Laurent, Quebec
October 16, 1996
<PAGE>
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) ____
________________________
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
(I.R.S. Employer
Identification No.)
399 Park Avenue, New York, New York 10043
(Address of principal executive offices) (Zip Code)
_______________________
STEWART ENTERPRISES, INC.
(Exact name of obligor as specified in its charter)
Louisiana 72-0693290
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
110 Veterans Memorial Boulevard
Metairie, Louisiana 70005
(Address of principal executive offices) (Zip Code)
_________________________
Debt Securities
(Title of the indenture securities)
<PAGE>
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.
Name Address
---- -------
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of New York New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. LIST OF EXHIBITS.
Exhibit 1 - Copy of Articles of Association of the Trustee, as now
in effect. (Exhibit 1 to T-1 to Registration Statement No. 2-79983)
Exhibit 2 - Copy of certificate of authority of the Trustee to
commence business. (Exhibit 2 to T-1 to Registration Statement
No. 2-29577).
Exhibit 3 - Copy of authorization of the Trustee to exercise
corporate trust powers. (Exhibit 3 to T-1 to Registration Statement
No. 2-55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to
T-1 to Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
Exhibit 6 - The consent of the Trustee required by Section 321(b) of
the Trust Indenture Act of 1939. (Exhibit 6 to T-1 to Registration
Statement No. 33-19227.)
Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A.
(as of June 30, 1996 - attached)
<PAGE>
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
2
<PAGE>
__________________
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
Citibank, N.A., 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 New York and State of New York, on the 10th day
of October, 1996.
CITIBANK, N.A.
By: /s/ Ronald L. Pierce
------------------------
Ronald L. Pierce
Vice President
<PAGE>
Comptroller of the Currency
Northeastern District
REPORT OF CONDITION
CONSOLIDATING
DOMESTIC AND FOREIGN
SUBSIDIARIES OF
CITIBANK, N.A.
of New York in the State of New York, at the close
of business on June 30, 1996, published in response
to call made by Comptroller of the Currency under
Title 12, United States Code, Section 161, Charter
Number 1461 Comptroller of the Currency Northeastern District.
ASSETS
<TABLE>
<CAPTION>
Thousands
of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ...................................... $ 7,503,000
Interest-bearing balances ................................................................. 11,133,000
Held-to-maturity securities ............................................................... 0
Available-for-sale securities ............................................................. 19,790,000
Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
Federal funds sold ...................................................................... 3,275,000
Securities purchased under agreements to resell ......................................... 289,000
Loans and lease financing receivables:
Loans and Leases, net of unearned income .................................. 148,323,000
LESS: Allowance for loan and lease losses ................................. 4,426,000
LESS: Allocated transfer risk reserve ..................................... 0
-----------
Loans and leases, net of unearned income, allowance, and reserve .......................... 143,897,000
Trading assets ............................................................................ 25,876,000
Premises and fixed assets (including capitalized leases) .................................. 3,477,000
Other Real estate owned ................................................................... 757,000
Investments in unconsolidated subsidiaries and associated companies ....................... 1,165,000
Customers' liability to this bank on acceptances outstanding .............................. 1,981,000
Intangible assets ......................................................................... 59,000
Other assets .............................................................................. 7,733,000
---------------
TOTAL ASSETS .............................................................................. $ 226,935,000
===============
LIABILITIES
Deposits:
In domestic offices ..................................................................... $ 34,406,000
Noninterest-bearing ....................................................... $11,994,000
Interest-bearing .......................................................... 22,412,000
-----------
In foreign offices, Edge and Agreement subsidiaries, and IBFs ............................. 128,771,000
Noninterest-bearing ....................................................... 8,568,000
Interest-bearing .......................................................... 120,203,000
-----------
Federal funds purchased and securities sold under agreements to repurchase
in domestic offices of the bank and of its Edge and Agreement subsidiaries,
and in IBFs:
Federal funds purchased ................................................................. 1,687,000
Securities sold under agreements to repurchase .......................................... 458,000
Demand notes issued to the U.S. Treasury ................................................ 0
Trading liabilities ....................................................................... 16,538,000
Other borrowed money:
With a remaining maturity of one year or less ........................................... 9,864,000
With a remaining maturity of more than one year ......................................... 4,695,000
Mortgage indebtedness and obligations under capitalized leases ............................ 138,000
Bank's liability on acceptances executed and outstanding .................................. 2,033,000
Subordinated notes and debentures ......................................................... 4,700,000
Other liabilities ......................................................................... 8,230,000
---------------
TOTAL LIABILITIES ......................................................................... $ 211,520,000
===============
Limited-life preferred stock and related surplus .......................................... 0
===============
EQUITY CAPITAL
Perpetual preferred stock and related surplus ............................................ 0
Common stock ............................................................................. 751,000
Surplus .................................................................................. 6,863,000
Undivided profits and capital reserves ................................................... 8,036,000
Net unrealized holding gains (losses) on available-for-sale securities ................... 343,000
Cumulative foreign currency translation adjustments ...................................... (578,000)
---------------
TOTAL EQUITY CAPITAL ..................................................................... $ 15,415,000
===============
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND EQUITY CAPITAL ...................... $ 226,935,000
===============
</TABLE>
I, Roger W. Trupin, Controller of the above-named bank do hereby declare
that this Report of Condition is true and correct to the best of my
knowledge and belief.
ROGER W. TRUPIN
We, the undersigned directors, attest to the correctness of this Report of
Condition. We declare that it has been examined by us, and to the best of
our knowledge and belief has been prepared in conformance with the
instructions and is true and correct.
PAUL J. COLLINS
JOHN S. REED
WILLIAM R. RHODES
DIRECTORS
<PAGE>
Exhibit 99
AGREEMENT
---------
THIS AGREEMENT (as amended or restated from time to time, the "Agreement")
dated September 20, 1996, is made and entered into by and between Stewart
Enterprises, Inc., a Louisiana corporation ("Borrower"), and NationsBank of
Texas, N.A., a national banking association ("Bank" or "NationsBank"), and
provides as follows:
WITNESSETH
----------
This Agreement shall set forth the terms and conditions under which the
Bank is prepared to extend to Borrower, for a 120 day term, a $75,000,000.00
revolving line of credit facility. Due to the limited term of the facility and
the desire of the parties to minimize the documentation to the extent possible,
various definitions and provisions contained in this Agreement have been
incorporated herein by reference to the Fifth Amended and Restated Loan
Agreement (as amended from time to time, the "Loan Agreement") dated as of
December 11, 1995 by and among Bank (individually and as agent), Borrower and
the other "Banks" as defined therein, a copy of which is annexed hereto as
Exhibit "A."
SECTION I. CERTAIN DEFINITIONS.
-------------------
1.01 As used in this Agreement, the terms "Agreement", "Borrower",
"Bank", "NationsBank", and "Loan Agreement" shall have the meanings indicated
above.
1.02 Subject to the qualifications hereinafter set forth in this
Section 1.02, as used in this Agreement, the following terms shall have the
meanings set forth in the Loan Agreement and are incorporated into this
Agreement by reference:
(a) Acquisition(s)
(b) Advance
(c) Affiliate
(d) Base Rate
(e) Base Rate Advance
(f) Base Rate Option
(g) Basis Point
(h) Business Day
(i) CD Rate
(j) CD Rate Advance
1
<PAGE>
(k) CD Rate Option
(l) CD Reserve Requirement
(m) Eurodollar Reserve Requirement
(n) FDIC Percentage
(o) Environmental Laws
(p) Federal Funds Rate
(q) GAAP or "generally accepted accounting principles"
(r) Governmental Body
(s) Hazardous Substances
(t) Highest Lawful Rate
(u) Indebtedness
(v) LIBOR Rate
(w) LIBOR Rate Advance
(x) LIBOR Rate Option
(y) NationsBank CD Rate
(z) NationsBank LIBOR Rate
(aa) Person or Persons
(bb) Subsidiary or Subsidiaries
Notwithstanding the foregoing, as used within the definitions
set forth above in this Section 1.02, the capitalized terms "Agreement" and
"Interest Period" shall be defined as set forth in this Agreement rather than as
defined in the Loan Agreement; the term "Agent" shall mean "NationsBank"; and
the term Revolving Line of Credit Notes shall mean the $75,000,000.00 "Revolving
Line of Credit Note" as defined in this Agreement. To the extent that any other
capitalized terms are found within the foregoing definitions that are not
specifically referenced herein, such terms shall have the definitions set forth
in the Loan Agreement, subject to the agreement of Borrower and Bank to
interpret such terms in a manner intended to give effect to the intentions of
the parties in entering this Agreement.
1.03 The following terms shall have the meanings indicated below,
unless the context otherwise requires:
(a) Commitment. Shall have the meaning set forth in Section II
hereof.
(b) Event of Default. Shall mean an "Event of Default" as
defined in Section X of this Agreement.
2
<PAGE>
(c) Interest Period(s). Shall mean (i) with respect to any
Base Rate Advance, or any portion of the Revolving Line of Credit Loan to which
the Base Rate Option applies, a period not to extend beyond the Maturity Date,
and (ii) with respect to any CD Rate Advance or LIBOR Rate Advance, or any
portion of the Revolving Line of Credit Loan to which the CD Rate Option or
LIBOR Rate Option applies if the CD Rate Option or LIBOR Rate Option is
available and is elected by the Borrower, a period commencing on the date such
CD Rate Advance or LIBOR Rate Advance is made or such election is effective and
ending, as the Borrower may select (subject to the limitations set forth in
Section V and elsewhere in this Agreement), on a date that is between (x) 7 days
and 120 days thereafter for a LIBOR Rate Advance and (y) 30 days and 120 days
thereafter for a CD Rate Advance; provided that the foregoing provisions
relating to Interest Periods are subject to the following:
(A) in no event may any Interest Period chosen
extend beyond the Maturity Date;
(B) subject to the provisions of this Agreement, in the
absence of Borrower's election of an Interest Period applicable to a CD Rate
Option or LIBOR Rate Option, Borrower shall be deemed to have elected a 30-day
Interest Period;
(C) if an Interest Period would end on a day that is not a
Business Day, such Interest Period shall be extended to the next Business Day
unless the result of such extension would be to extend such Interest Period into
another calendar month, in which event such Interest Period shall end on the
immediately preceding Business Day; and
(D) notwithstanding the length of any Interest Period
selected by Borrower with respect to a Base Rate Advance, the Base Rate shall be
adjusted automatically from time to time on and as of the effective date of any
change in NationsBank's "prime rate."
(d) Loan or Revolving Line of Credit Loan. Shall have the
meaning set forth in Section II hereof.
(e) Loan Papers. Shall mean this Agreement, the Revolving Line
of Credit Note and any and all other agreements, reports, certificates,
corporate resolutions, notices, statements, consents, documents and instruments
heretofore or hereafter delivered to Bank in connection with this Agreement, the
Obligation and the transactions contemplated thereby.
(f) Material Adverse Effect. Shall mean a material adverse
effect on (i) the properties, prospects, business, operations, financial
condition, liabilities, or capitalization of the Borrower and the Subsidiaries
taken as a whole, (ii) the ability of the Borrower to pay and perform
3
<PAGE>
its obligations under any of the Loan Papers, or (iii) the validity or
enforceability of any of the Loan Papers or the rights and remedies of the Bank
thereunder.
(g) Maturity Date. Shall mean January 17, 1997.
(h) Obligation. At any particular time shall mean,
collectively, (i) the aggregate unpaid principal amount of the Revolving Line of
Credit Note, and any extensions, renewals or rearrangements of same, and any
other promissory notes executed in connection with this Agreement, (ii) all
interest accrued and payable thereon, (iii) all fees (including commitment fees)
and other charges payable hereunder (including attorneys fees incurred in
connection with the enforcement and collection of the Borrower's obligations
hereunder or any part thereof), (iv) any and all obligations of the Borrower in
respect to such sums, and (v) all other amounts from time to time payable by the
Borrower to the Bank pursuant to this Agreement or any other Loan Papers.
(i) Revolving Line of Credit Note. Shall mean that certain
Revolving Line of Credit Note in the principal sum of Seventy-Five Million
($75,000,000.00) Dollars dated September 20, 1996 executed by Borrower in favor
of Bank, together with any extensions, renewals, amendments or rearrangements of
same.
SECTION II. LOAN; MATURITY DATE. Subject to the terms and conditions contained
herein, Bank agrees to extend to the Borrower a revolving line of credit loan
(the "Loan" or the "Revolving Line of Credit Loan") and to make Advances to the
Borrower under the Loan from time to time in the aggregate principal amount of
up to Seventy-Five Million ($75,000,000.00) Dollars (the "Commitment") from the
date of this Agreement through the Maturity Date. Advances under the Loan
shall be evidenced by the Revolving Line of Credit Note executed by the Borrower
and delivered to the Bank and reflected by a credit advice issued in connection
therewith; provided, however, that the failure to issue such credit advice shall
not affect the Borrower's obligation hereunder or under the Revolving Line of
Credit Note with respect to such Advance or otherwise.
SECTION III. NOTICE AND MANNER OF FUNDING OF ADVANCES. Subject to the terms
and conditions contained herein, in order to obtain an Advance under the Loan,
the Borrower shall notify the Bank in writing at least two (2) Business Days
prior to the date that Borrower desires such Advance to be funded (the "Funding
Date"), except that in the case of a Base Rate Advance, Borrower may notify the
Bank in writing not later than 9:00 a.m. on the Funding Date. Such written
notice shall specify (a) the Funding Date; (b) the requested amount of the
Advance (in no event less than One Million ($1,000,000.00) Dollars); (c) the
requested interest rate option, which shall be either the Base Rate Option, the
CD Rate Option, or the LIBOR Rate Option, selected by Borrower; and (d) in the
case of selection of the CD Rate Option or the LIBOR Rate Option, the requested
duration of the Interest
4
<PAGE>
Period applicable thereto. Upon satisfaction of the terms and conditions of
this Agreement, the Bank will make such funds available to the Borrower by
crediting the amount thereof to the Borrower's account with Bank or as otherwise
may be directed by Borrower. It is specifically understood, however, that the
Loan may not be used by Borrower as the basis on which to request issuance of
letters of credit by the Bank.
SECTION IV. REPAYMENTS OF REVOLVING LINE OF CREDIT NOTE. Subject to the
limitations set forth in Section V below, the Borrower may prepay at any time
and from time to time the principal amount of the Revolving Line of Credit Note,
in whole or in part, in amounts of not less than One Million ($1,000,000.00)
Dollars (or a lesser amount if such amount represents the total outstanding
principal balance under the Revolving Line of Credit Note at the time of such
prepayment), without premium or penalty. Through the Maturity Date, the
Borrower may thereafter at any time and from time to time borrow again, subject
to the terms and conditions of this Agreement, up to the full amount of the
Commitment. On the Maturity Date, the entire unpaid principal balance of the
Revolving Line of Credit Note then outstanding shall be payable in full,
together with all interest accrued thereon and any other portion of the
Obligation then outstanding.
SECTION V. INTEREST ON REVOLVING LINE OF CREDIT NOTE. The unpaid principal
balance of the Revolving Line of Credit Note shall bear interest, at Borrower's
option (subject to the limitations set forth herein) from time to time, at a
rate per annum equal to:
(a) the Base Rate, as adjusted from time to time; or
(b) the LIBOR Rate for 7 to 120 days, plus 50.625 Basis Points; or
(c) the CD Rate for 30 to 120 days, plus 63.125 Basis Points.
Borrower shall notify the Bank in writing at least two (2) Business Days prior
to the last day of each Interest Period, specifying (i) the requested interest
rate option, which shall be either the Base Rate Option, the LIBOR Rate Option,
or the CD Rate Option, selected by Borrower and (ii) in the case of the LIBOR
Rate Option or the CD Rate Option, the requested duration of the Interest Period
applicable thereto.
In the event that Borrower fails to so notify the Bank, Borrower shall
be deemed, subject to the provisions of the Agreement, to have selected the same
interest rate option(s) and Interest Period as were in effect during the
previous Interest Period. Should Borrower opt to employ the LIBOR Rate Option
or CD Rate Option for a given Interest Period, Borrower shall not be entitled to
repay the portion of the Revolving Line of Credit Note funded under the LIBOR
Rate Option or the CD Rate Option until the expiration of the Interest Period
for which Borrower has opted, unless Borrower shall have notified Bank in
writing of such request to repay and shall have indemnified
5
<PAGE>
Bank in accordance with the provisions and the formula set forth in Section
6.02(i) of the Loan Agreement.
If at any time a borrowing at the CD Rate Option is to be made, Bank
determines that by reason of circumstances affecting the domestic market for
certificates of deposit generally, either adequate and reasonable means do not
exist for ascertaining the CD Rate for any Interest Period selected by the
Borrower, or it becomes impractical for the Bank to obtain funds to make or
maintain any borrowing bearing interest at the CD Rate, or the Bank shall have
determined that the CD Rate will not adequately and fairly reflect the cost to
the Bank of making, maintaining or funding a proposed borrowing that Borrower
has requested to bear interest at the CD Rate, then Bank shall promptly give
notice to Borrower of such determination, and Borrower shall choose, subject to
the limitations set forth herein, either the Base Rate Option or the LIBOR Rate
Option.
If at any time a borrowing under the LIBOR Rate Option is to be made,
Bank determines that either adequate and reasonable means do not exist for
ascertaining the LIBOR Rate for any Interest Period selected by the Borrower, or
it becomes impractical for the Bank to obtain funds to make or maintain any
borrowing bearing interest at the LIBOR Rate, or the Bank shall have determined
that the LIBOR Rate will not adequately and fairly reflect the cost to the Bank
of making, maintaining, or funding a proposed borrowing that Borrower has
requested to bear interest at the LIBOR Rate, then Bank shall promptly give
notice to Borrower of such determination, and Borrower shall choose, subject to
the limitations set forth herein, either the Base Rate Option or the CD Rate
Option.
If at any time the Bank reasonably determines that, as a result of
changes after the date of this Agreement in laws, or the adoption or making
after such date of any interpretations, directives or regulations (whether or
not having the force of law) by any court, governmental authority or reserve
bank charged with the interpretation or administration thereof, it shall be or
become unlawful or impossible to make, maintain, or fund any borrowing bearing
interest at the CD Rate Option or LIBOR Rate Option, the Bank's obligation to
make or continue the affected borrowing shall cease and Borrower shall choose,
subject to the limitations set forth herein, one of the other available interest
rate options, and Borrower shall pay the Bank any amounts necessary to
compensate the Bank for any such conversion to a new interest rate option.
Accrued interest on the Revolving Line of Credit Note shall be payable
on October 31, 1996, and on the Maturity Date; provided, however, that in the
event that Borrower opts to employ the LIBOR Rate Option or the CD Rate Option
for all or any portion of the Loan, accrued interest on such amount, in addition
to being payable as set forth above, shall also be payable in full on the
expiration of the Interest Period selected by Borrower.
6
<PAGE>
Interest payable under the Revolving Line of Credit Note shall be
calculated on the basis of actual days elapsed over a 360-day year.
SECTION VI. PAYMENTS AND PAST DUE AMOUNTS; COMMITMENT FEE.
6.01 All amounts payable by the Borrower to the Bank in connection
with the Loan shall be paid in lawful money of the United States of America in
collected funds to the Bank at the principal office of the Bank in Dallas,
Texas, not later than 12:00 o'clock Noon (Dallas, Texas time). Payments received
after 12:00 o'clock Noon (Dallas, Texas time) shall be deemed received on the
next Business Day. If any payment or prepayment falls due on a day that is not a
Business Day, then such due date shall be extended to the first succeeding
Business Day, unless the first succeeding Business Day is in the next calendar
month, in which event the payment or prepayment shall be made on the first
preceding Business Day. All payments and prepayments on the Revolving Line of
Credit Note shall be paid to and received by the Bank for application to the
Loan as follows: first to expenses for which the Bank has not been reimbursed;
then to accrued but unpaid interest; then to unpaid principal. All past due
payments of principal and interest shall bear interest at the Highest Lawful
Rate.
6.02 In consideration for extending to Borrower the Loan, Borrower
agrees to pay to Bank, on October 31, 1996 (for the period commencing on the
date of execution of this Agreement and extending through such date) and on the
Maturity Date (for the period from November 1, 1996 through the Maturity Date),
a commitment fee equal to eighteen (18) Basis Points per annum on the average
daily amount of the unadvanced portion of the Loan.
SECTION VII. CONDITIONS PRECEDENT.
7.01 Conditions Precedent to Obligation of Bank to Fund Initial
Advance. The obligation of the Bank to fund the initial Advance under this
Agreement is subject to the conditions precedent that as of the date of the
funding of such Advance, each of the following conditions shall have been met:
(a) all representations and warranties made by the Borrower
in this Agreement or in any other Loan Papers are true and correct and each of
the covenants by or on behalf of the Borrower and the Subsidiaries provided for
in this Agreement or in any other Loan Papers have been complied with in full;
and
7
<PAGE>
(b) no Event of Default has occurred or will occur as a
result of the making of such Advance; and
(c) the Bank shall have received the following, each in form
and substance satisfactory to the Bank:
(i) this Agreement, duly executed by the Borrower;
(ii) the Revolving Line of Credit Note, duly executed by
the Borrower;
(iii) a certified copy of the resolution or unanimous
consent of the board of directors of the Borrower approving and authorizing the
execution, delivery and performance of this Agreement, the Revolving Line of
Credit Note and all other matters contemplated thereby;
(iv) a copy of the articles of incorporation and bylaws
of the Borrower, certified to be true and correct by the secretary or assistant
secretary of Borrower; and a certificate of good standing with respect to the
Borrower issued by the Secretary of State of the State of Louisiana; and
(v) the legal opinion of counsel for the Borrower in
the State of Louisiana, in form and substance satisfactory to the Bank.
7.02 Additional Conditions Precedent to the Obligation of the
Bank to Fund All Advances. The obligation of the Bank to fund all Advances under
this Agreement (including the initial Advance) shall be subject to the further
conditions precedent that on the date of the funding of such Advance, the
following statements shall be true and correct and the Bank shall have the
option to require that Borrower provide Bank with a certificate signed by a duly
authorized officer of the Borrower, dated the date of the funding of such
Advance, stating that:
(a) no installment of principal or interest on any
Indebtedness or obligations due by Borrower under this Agreement is past due
(whether or not any cure period applicable to any of the foregoing has elapsed);
(b) Borrower and the Subsidiaries (to the extent
applicable) are in full compliance (including any waivers of same granted in
writing to the Borrower) with the covenants set forth in Sections 5.22, 5.23,
5.24, 5.25, 5.26, and 5.27 of the Loan Agreement (which
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have been incorporated herein by reference) whether or not any cure period
applicable to any of the foregoing under the provisions of Section 6.01 of the
Loan Agreement has elapsed;
(c) no event has occurred that, but for the passage of
time, would constitute an Event of Default under Section 6.01(g) of the Loan
Agreement; and
(d) no Event of Default has occurred, or will occur as
a result of the making of such Advance.
SECTION VIII. REPRESENTATIONS AND WARRANTIES.
------------------------------
8.01 To induce the Bank to enter into this Agreement, Borrower
represents and warrants to the Bank that as of the date of this Agreement:
(a) Organization; Qualification; Power. The Borrower and each of
its Subsidiaries are duly organized, validly existing and are duly qualified and
in good standing in each jurisdiction in which the nature of their activities or
their properties owned or leased makes such qualification necessary, except for
jurisdictions individually or in the aggregate where the failure to be so
qualified or the failure to be in good standing could not be reasonably expected
to have a Material Adverse Effect. Additionally, Borrower and each of its
Subsidiaries have all requisite power, authority and legal right to conduct
their respective businesses and to execute, deliver and perform their respective
obligations under the Loan Papers.
(b) Corporate Authorization; Consents and Approvals. The
execution, delivery and performance by the Borrower of each of the Loan Papers
has been duly authorized by all necessary corporate action, and do not and will
not (i) require any consent or approval of the stockholders of the Borrower,
(ii) violate any provision of any law, rule, regulations, order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to the Borrower or of the charter or bylaws (or other
organizational documentation) of the Borrower, (iii) result in a breach of or
constitute a default under any indenture or loan or credit agreement or any
other agreement or instrument to which the Borrower or any Subsidiary is a party
or by which it or its property may be bound or affected or (iv) result in or
require the creation or imposition of any lien or encumbrance upon or with
respect to any of the properties now owned or hereafter acquired by the Borrower
or any Subsidiary. Additionally, no authorization, consent, approval, license,
exemption, filing or registration with any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, is or
will be necessary for the valid execution, delivery or performance of any of the
Loan Papers by the Borrower.
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(c) Business 6.05Business. The Borrower and its Subsidiaries are
engaged generally in the business of the ownership, operation, development,
design and/or construction of mausoleums, cemeteries, funeral homes, real estate
(incidental to the development of cemeteries and funeral homes), and related
activities.
(d) Financial Statements 6.06Financial Statements. The audited
annual financial statements and unaudited financial statements of the Borrower
and the Subsidiaries most recently furnished to the Bank were prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved and fairly present the financial condition and
results of operations of the Borrower and its Subsidiaries as of the effective
date thereof. There are no material liabilities of the Borrower or any of its
Subsidiaries, direct or indirect, fixed or contingent, which are not reflected
in any such financial statements or in the notes thereto.
(e) Litigation, Etc. Except as described in Exhibit "B" annexed
hereto, there is no litigation, proceeding or investigation pending or, to the
knowledge of the Borrower or its Subsidiaries, threatened against such entities
or any of their business operations, properties or assets in any court or before
any arbitrator of any kind or before any Governmental Body, and neither the
Borrower nor any of its Subsidiaries is in default with respect to any order of
any court, arbitrator or any Governmental Body and neither the Borrower nor any
of the Subsidiaries have any outstanding or unpaid judgments. For purposes of
this Section 8.01(e), any litigation, proceeding or investigation wherein the
amount in controversy is less than $1,000,000.00 need not be listed in Exhibit
"B". 6.09Litigation, Etc.
(f) Compliance with Law 6.10Compliance with Law. To the knowledge
of Borrower, the businesses and operations of the Borrower and its Subsidiaries
have been and are being conducted in accordance with all applicable laws, rules
and regulations of all Governmental Bodies, including, without limitation, all
Environmental Laws, except for (i) certain violations of such laws, rules and
regulations which will not materially adversely affect the business, prospects,
profits, properties or condition (financial or otherwise) of the Borrower or any
of its Subsidiaries and (ii) such violations of laws, rules and regulations that
previously have been disclosed in writing to the Bank.
(g) Compliance with Other Instruments 6.11Compliance with Other
Instruments. To the knowledge of Borrower, neither the Borrower nor any of its
Subsidiaries is in violation of any term or provision of any charter, bylaw,
mortgage, indenture, contract, agreement, instrument or license applicable to it
or any of its properties, and there is no term or provision thereof which
materially adversely affects or in the future may materially adversely affect
any of the business operations, properties or assets or the condition, financial
or otherwise, of the Borrower or any of its Subsidiaries.
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(h) Adverse Developments 6.12Adverse Developments. Since the
effective date of the last audited financial statements provided by Borrower to
the Bank, there has occurred no event which could reasonably be expected to have
a Material Adverse Effect.
(i) Legally Enforceable Agreements 6.18Legally Enforceable
Agreements. This Agreement is, and each of the other Loan Papers heretofore or
hereafter delivered to the Bank under this Agreement will constitute legal,
valid and binding obligations of the Borrower and the Subsidiaries, as the case
may be, enforceable against the Borrower and/or the Subsidiaries, as the case
may be, in accordance with their respective terms.
(j) Disclosure. No statement, information, report, representation
or warranty made by the Borrower in this Agreement or any other Loan Paper, or
furnished to the Bank in connection with any Loan Paper, contains any untrue
statement of a material fact or omits to state any material fact necessary to
make the statements herein or therein not misleading.
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SECTION IX. COVENANTS.
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9.01 Incorporation of Covenants from Loan Agreement. For so long as
the Bank has any Commitment or obligation hereunder or any portion of the
Obligation remains unpaid, Borrower hereby covenants and agrees that the
covenants by and/or on behalf of Borrower and the Subsidiaries set forth in
Article V of the Loan Agreement are hereby incorporated by reference into this
Agreement and are hereby undertaken in favor of Bank to the same extent as same
are undertaken in favor of "Agent" and the "Banks" under the Loan Agreement;
provided, however, that Borrower shall be under no duty to furnish Bank with any
financial statement, report or similar documentation required hereunder if the
identical financial statement, report or documentation has been furnished to
Bank pursuant to the Loan Agreement. Such covenants shall survive whether or not
the Loan Agreement is terminated during the term of this Agreement. Without
limiting the generality of the foregoing, it is specifically understood and
agreed that (i) the proceeds of the Loan may only be used for the purposes (and
subject to the limitations) set forth in the Loan Agreement and (ii) in addition
to the obligation of the Borrower to notify the Bank of certain events set forth
in Section 5.10 and elsewhere in the Loan Agreement, Borrower shall notify the
Bank within five (5) Business Days following the date on which any Officer of
Borrower obtains knowledge of the occurrence of any Event of Default as defined
in this Agreement. As used in the preceding sentence, the term "Officer" shall
refer to the members of the senior management of Borrower including, without
limitation, the individuals and officers referred to in Section 5.10 of the Loan
Agreement.
9.02 Covenants Do Not Expand Rights of Borrower. The covenants
incorporated into this Agreement from the Loan Agreement contain provisions
pursuant to which the Bank grants to Borrower certain rights, benefits and
privileges. For example (and without limitation), Section 5.12 of the Loan
Agreement (Restricted Loans and Investments), among other things, authorizes
Borrower to (a) establish one finance company subsidiary (see subsection (k));
(b) make minority investments not to exceed $25 million (see subsection (m));
(c) make certain investments in land not to exceed $2 million (see subsection
(r)); and (d) make certain "other investments" which do not exceed 2% of
Borrower's Net Worth (see subsection (t)). It is specifically understood and
agreed by the parties hereto that the incorporation into this agreement of the
covenants set forth in Article V of the Loan Agreement shall not be construed to
grant to the Borrower any greater or more expansive rights, benefits and
privileges than those set forth in Article V of the Loan Agreement. Accordingly,
and again by way of example only, Borrower shall continue to be limited to the
establishment of only one finance company subsidiary under Section 5.12(k), and
the permitted allowances for "minority investments", investments in land and
"other investments" set forth in subsections 5.12 (m),(r),(t), respectively, of
the Loan Agreement shall not be increased by virtue of the incorporation of
those provisions into this Agreement.
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SECTION X. EVENTS OF DEFAULT; CERTAIN RIGHTS OF BANK.
-----------------------------------------
10.01 Nature of Events. An "Event of Default" hereunder shall exist
hereunder if any of the following shall occur:
(a) Principal and Interest Payments. The Borrower shall fail
to make any payment of principal or interest on the Obligation or any other
Indebtedness owed by the Borrower to the Bank, on or before the date such
payment is due, and same shall not have been cured within five (5) days
following written notice to Borrower; or
(b) Representations and Warranties. If any warranty,
representation or other statement by or on behalf of the Borrower or any
Subsidiary contained in this Agreement or in any certificate, opinion or
financial or other statement furnished at any time under or in connection with
this Agreement is false, misleading or incorrect in any material respect on or
as of the date made or deemed made. Notwithstanding the foregoing, in the event
that the breaching party was unaware of the breach, such party shall have
fifteen (15) days following its discovery to cure such breach, and:
(i) with respect to a breach of a representation or
warranty set forth in Sections 8.01(c), 8.01(d) or 8.01(i) of this Agreement, in
the event that (A) the task necessary to cure such default would reasonably
require more than fifteen (15) days to complete, and (B) such breaching party
diligently undertakes such task within fifteen (15) days following its discovery
of same, then such breaching party shall be entitled to complete the task so
long as such diligent efforts are maintained, but in no event for a period that
exceeds ninety (90) days from its discovery of such breach; and
(ii) with respect to a breach of a representation or
warranty set forth in Sections 8.01(a), 8.01(b) or 8.01(f) of this Agreement, in
the event that (A) the task necessary to cure such default would reasonably
require more than fifteen (15) days to complete, and (B) such breaching party
diligently undertakes such task within fifteen (15) days following its discovery
of same, then such breaching party shall be entitled to complete the task so
long as such diligent efforts are maintained; or
(c) Covenant Defaults. The Borrower or any Subsidiary shall
fail to perform or observe any other term, provision or agreement contained in
this Agreement and such failure shall continue for a period of fifteen (15) days
following written notice to Borrower (except for the obligation to provide Bank
with notice of default or similar notices, for which there shall be no cure
period); provided, however, that with respect to the covenants of the Borrower
and the
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Subsidiaries incorporated herein by reference to Article V of the Loan
Agreement, it is specifically understood that no Event of Default hereunder
shall occur until the expiration of any cure period applicable to such covenant
under the Loan Agreement; or
(d) Loan Agreement Defaults. The occurrence of an "Event of
Default" as defined in the Loan Agreement; or
(e) Loan Agreement Expiration. The expiration or cancellation
of the Loan Agreement.
10.02 Certain Remedies of Bank. Upon the occurrence of an Event of
Default, Bank shall be entitled to exercise for itself each of the rights and
remedies available to the "Agent" and/or the "Banks" under Sections 6.02(a)(i),
(ii), (iii) and (iv) and Section 6.02 (b) of the Loan Agreement (each of which
provisions being incorporated herein by reference), together with any other
rights and remedies available to it under applicable law.
10.03 Certain Additional Rights of Bank. In addition to the
foregoing, the Bank shall be entitled to exercise for itself all of the rights,
privileges, benefits and advantages available to the "Agent" or the "Banks" (and
Borrower hereby undertakes in favor of Bank each of the duties and obligations)
set forth in Sections 6.02(c), 6.02(d), 6.02(e), 6.02(f), 6.02(g), 6.02(h) and
6.02(i) of the Loan Agreement (each of which provisions being incorporated
herein by reference).
10.04 Application of Proceeds. Any and all cash proceeds ever
received by the Bank resulting from the exercise of any rights pursuant to this
Agreement or the other Loan Papers following an Event of Default shall be
applied in such manner as the Bank shall determine.
SECTION XI. GOVERNING LAW. THE LAWS OF THE STATE OF TEXAS AND OF THE UNITED
STATES OF AMERICA SHALL GOVERN THE RIGHTS AND DUTIES OF THE PARTIES HERETO AND
THE VALIDITY, CONSTRUCTION, ENFORCEMENT, AND INTERPRETATION OF THE LOAN PAPERS.
COURTS WITHIN THE STATE OF TEXAS SHALL HAVE JURISDICTION OVER ANY AND ALL
DISPUTES BETWEEN THE PARTIES TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO,
ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND VENUE IN ANY SUCH
DISPUTE, WHETHER IN FEDERAL OR STATE COURT, SHALL BE LAID IN DALLAS COUNTY,
TEXAS.
SECTION XII. MISCELLANEOUS:
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12.01 Notices. All notices, consents, approvals, requests, demands
and other communications hereunder shall be in writing (including telecopy
communications) and shall be made in accordance with the provisions and
procedures set forth in Section 7.02 of the Loan Agreement.
12.02 Survival. All warranties, representations, and covenants
made by or on behalf of the Borrower and each of the Subsidiaries herein or in
any other Loan Paper shall be considered to have been relied upon by the Bank
and shall survive the delivery to the Bank of such Loan Paper or the extension
of the Revolving Line of Credit Note, regardless of any investigation made by or
on behalf of the Bank.
12.03 Construction. Each party hereto acknowledges that each has had
the benefit of legal counsel of its own choice and has been afforded an
opportunity to review this Agreement and the other Loan Papers with its legal
counsel and that this Agreement and the other Loan Papers shall be construed as
if jointly drafted by the parties hereto.
12.04 Amendments or Modifications. No amendment or modification to
this Agreement shall in any event be effective unless the same shall be in
writing and signed by the parties hereto. No waiver of any provisions of this
Agreement, nor consent to any departure by the Borrower or any Subsidiary from
the provisions of this Agreement, shall be effective unless same shall be in
writing and signed by the Bank.
12.05 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Borrower and the Bank, and their respective
successors and assigns; provided that the Borrower may not transfer its right to
borrow hereunder without the prior written consent of the Bank.
12.06 Counterparts. Multiple counterparts of this Agreement may be
signed by the parties, each of which shall be an original but all of which
together shall constitute one and the same instrument.
12.07 Further Assurances. Borrower will promptly cure or cause to be
cured any defects in the execution and delivery of this Agreement and the other
Loan Papers and will immediately execute and deliver (and shall cause its
Subsidiaries to execute and deliver), upon request of Bank, such further
documents or agreements that are necessary to comply with or accomplish the
covenants and agreements contained in this Agreement and the other Loan Papers.
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12.08 Expenses. Whether or not any Advance is made hereunder, the
Borrower will pay all expenses relating to the Loan Papers, including, but not
limited to the reasonable fees and disbursements of Bank's counsel(s); the
reasonable out-of-pocket expenses of the Bank; all reasonable expenses relating
to any amendments, waivers or consents pursuant to the provisions hereof; and
all reasonable legal fees and out of pocket expenses incurred in connection with
the enforcement of the rights, remedies and privileges of the Bank under this
Agreement and under any other Loan Paper, as well as any other legal and out of
pocket expenses provided for under any of the Loan Papers.
12.09 NON-APPLICATION OF CHAPTER 15, ARTICLE 5069, TEXAS CIVIL
STATUTES. THE PROVISIONS OF VERNON'S TEXAS CIVIL STATUTES, ARTICLE 5069,
CHAPTER 15 (WHICH REGULATES CERTAIN REVOLVING CREDIT LOAN ACCOUNTS AND REVOLVING
TRI-PARTY ACCOUNTS) SHALL NOT APPLY TO THIS AGREEMENT, THE REVOLVING LINE OF
CREDIT NOTE, ANY OF THE OTHER LOAN PAPERS, OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
12.10 Assignments and Participations. The Bank shall be entitled to
grant one or more assignments or participations in the Revolving Line of Credit
Note provided that, except with the prior written consent of Borrower, such
assignment/participations may only be granted to an Affiliate of the Bank. It
is specifically understood, however, that such assignment/participation shall
not relieve the Bank of its obligations hereunder nor shall the recipient of
such assignment/participation become a party to this Agreement.
12.11 Subordination. The payment of all present and future
Indebtedness due by Borrower to any Subsidiary is hereby subordinated in full to
the payment in full of the Revolving Line of Credit Note and other Obligations;
provided, however, that so long as no Event of Default has occurred and is
continuing, such Indebtedness of Borrower may be repaid according to its terms.
After the occurrence of an Event of Default, no sum shall be paid on account of
any of such Indebtedness. It is specifically understood that the provisions of
this Section 12.11 shall apply to all of the Subsidiaries of Borrower, whether
same are presently existing or are acquired or created hereafter. Upon request
of the Bank, Borrower shall cause each Subsidiary to execute a subordination
agreement in form and substance satisfactory to Bank.
12.12 Certain Additional Provisions. The following provisions of the
Loan Agreement are incorporated by reference into this Agreement, Borrower
hereby (a) granting to the Bank the same rights and benefits granted to "Agent"
and the "Banks" under such sections and (b) undertaking in favor of Bank the
same duties and obligations as are set forth in such sections:
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(i) Section 7.04 - Direct or Indirect Action;
(ii) Section 7.06 - Maximum Interest Rate;
(iii) Section 7.07 - Invalid Provisions;
(iv) Section 7.10 - Accounting Principles;
(v) Section 7.16 - Determination of Interest Rate; and
(vi) Section 7.21 - Miscellaneous Additional Compensation to
Bank.
12.13 Deposits; Set Off. Any deposits or other sums credited by or due
from the Bank or any of its participants, assignees or Affiliates to the
Borrower or any of its Subsidiaries shall at all times constitute security for
the Obligation of the Borrower to the Bank and, upon the occurrence of an Event
of Default, may be set off against any and all liabilities, direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter arising,
of the Borrower to the Bank, and the Borrower hereby irrevocably authorizes the
Bank and any of its participants, assignees or Affiliates to make such setoff.
The rights granted by this Section 12.13 are in addition to any other rights of
the Bank including, without limitation, any rights of set-off under any
statutory bankers' lien and under any of the Loan Papers. Notwithstanding the
foregoing, specifically excepted from this Section 12.13 shall be funds managed
by, under the custody of or placed in escrow accounts with the trust department
of the Bank or its participants, assignees or Affiliates for purposes of
providing future delivery of goods, property and services, which funds shall not
be subject to set-off pursuant hereto.
12.14 Interpretation of Agreement. At the request of the parties
hereto and for their convenience, various provisions of the Loan Agreement have
been incorporated by reference into this Agreement. It is the intention of the
parties hereto that the various rights, remedies and privileges granted to the
"Agent" and "Banks" under the Loan Agreement provisions incorporated herein by
reference, and the duties and obligations of the Borrower and the Subsidiaries
undertaken therein, are intended to be granted to and/or undertaken in favor of
the Bank hereunder with respect to the Loan that is the subject of this
Agreement. To the extent that any ambiguity exists, the parties to this
Agreement agree to interpret such provisions incorporated by reference from the
Loan Agreement in a manner intended to give effect to the intentions of the
parties in entering this Agreement.
12.14 Texas Opinion. Promptly upon a request from the Bank, the
Borrower will furnish to the Bank a legal opinion of Texas counsel to the
Borrower, in form and substance satisfactory to the Bank.
12.15 PREVIOUS AGREEMENTS; ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND
THE OTHER WRITTEN LOAN PAPERS REPRESENT, COLLECTIVELY,
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THE FINAL AGREEMENT AMONG THE PARTIES THERETO WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF SUCH PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
BORROWER:
STEWART ENTERPRISES, INC.
By:
Name:
Title:
BANK:
NATIONSBANK OF TEXAS, N.A.
By: ___________________________
Thomas Blake
Senior Vice President
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