SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 4, 1996
STEWART ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
LOUISIANA 0-19508 72-0693290
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
110 Veterans Memorial Boulevard
Metairie, Louisiana 70005
(Address of principal executive offices) (Zip Code)
(504) 837-5880
(Registrant's telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events
On December 4, 1996 the Company issued the following press release.
CONTACT:
Ronald H. Patron
Stewart Enterprises, Inc.
110 Veterans Boulevard
Metairie, Louisiana 70005
504/837-5880
FOR IMMEDIATE RELEASE
STEWART ENTERPRISES OFFERS $100 MILLION OF 6.70% NOTES DUE 2003
Metairie, Louisiana, December 4, 1996. . . Stewart Enterprises,
Inc. (Nasdaq NMS: STEI) announced today that it is offering to the
public a total of $100 million of 6.70% Notes due 2003. The
offering is being underwritten by NationsBanc Capital Markets,
Inc., Bear, Stearns & Co., Inc. and Citicorp Securities, Inc. The
Company intends to use the net proceeds of approximately $99.2
million from the offering to reduce the balances outstanding on one
or more of its four revolving credit facilities, which amounts will
then become available to the Company to fund its continuing
acquisition program and for general corporate purposes. Closing is
scheduled for December 9, 1996.
Founded in 1910, Stewart Enterprises, Inc. is the third largest
provider of products and services in the death care industry in
North America, currently owning and operating 299 funeral homes and
120 cemeteries in 21 states, Puerto Rico, Mexico, Australia, New
Zealand and Canada.
Item 7. Financial Statements and Exhibits
(c)Exhibits
1.1 Underwriting Agreement dated December 4, 1996 between the Company
and each of the underwriters named therein
4.1 Indenture dated as of December 1, 1996 between the Company and
Citibank, N.A. as Trustee
4.2 Form of Note
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
STEWART ENTERPRISES, INC.
December 5, 1996 /s/ KENNETH C. BUDDE
___________________________
Kenneth C. Budde
Senior Vice President-Finance
Secretary and Treasurer
(Principal Accounting Officer)
<PAGE>
EXHIBIT INDEX
1.1 Underwriting Agreement dated December 4, 1996 between the Company
and each of the underwriters named therein
4.1 Indenture dated as of December 1, 1996 between the Company and
Citibank, N.A. as Trustee
4.2 Form of Note
$100,000,000
STEWART ENTERPRISES, INC.
6.70% Notes due 2003
UNDERWRITING AGREEMENT
December 4,1996
NationsBanc Capital Markets, Inc.
Bear, Stearns & Co. Inc.
Citicorp Securities, Inc.
c/o NationsBanc Capital Markets, Inc.
NationsBank Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Dear Sirs:
SECTION 1. Introductory. Stewart Enterprises,
Inc., a Louisiana corporation (the "Company"), proposes to
issue and sell to the several Underwriters named in Schedule
I hereto (the "Underwriters"), $100,000,000 principal amount
of its 6.70% Notes due 2003 (the "Notes"). The Notes are to
be issued pursuant to the provisions of an indenture dated
as of December 1, 1996 (the "Indenture") between the Company
and Citibank, N.A., as Trustee (the "Trustee"). The Company
hereby agrees with the Underwriters as follows:
SECTION 2. Representations, Warranties and
Agreements of the Company. The Company represents and
warrants to, and agrees with, the several Underwriters that:
1 (a) A registration statement on Form S-3
(File No. 333-14467) with respect to an aggregate
of $300,000,000 principal amount of debt
securities (including the Notes) (i) has been
prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations
(the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission")
thereunder, (ii) has been filed with the
Commission under the Act and (iii) has become
effective under the Act and either is not proposed
to be amended or is proposed to be amended by
amendment or post-effective amendment. If any
post-effective amendment to such registration
statement has been filed with the Commission prior
to the execution and delivery of this Agreement,
the most recent such amendment has been declared
effective by the Commission. Copies of such
registration statement as amended to date have
been delivered by the Company to you. For
purposes of this Agreement, "Effective Time" means
the date and the time as of which such
registration statement, or the most recent post-
effective amendment thereto, if any, was declared
effective by the Commission; "Effective Date"
means the date of the Effective Time; "Preliminary
Prospectus" means each prospectus included in such
registration statement, or amendments thereof,
before it became effective under the Act and any
prospectus filed with the Commission by the
Company with the consent of the Underwriters
pursuant to Rule 424(a) of the Rules and
Regulations prior to the filing of the Prospectus;
"Registration Statement" means such registration
statement, as amended at the Effective Time,
including any documents incorporated by reference
therein but excluding that part of the
registration statement that constitutes the
Statement of Eligibility and Qualification ("Form
T-1") under the Trust Indenture Act of 1939, as
amended (the "1939 Act"), of the Trustee;
"Prospectus" means the prospectus relating to the
Notes, in the form in which it has most recently
been filed, or transmitted for filing, with the
Commission on or prior to the date of this
Agreement; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by
reference therein as of the date of such
Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include
any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and incorporated
by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to
any amendment to the Registration Statement shall
be deemed to refer to and include any annual
report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that
is incorporated by reference in the Registration
Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer
to the Prospectus as amended or supplemented in
relation to the Notes in the form in which it is
filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by
reference therein as of the date of such filing.
The Commission has not issued any order preventing
or suspending the use of any Preliminary
Prospectus or the Prospectus.
(b) The Registration Statement and the Prospectus
conform, and any amendments or supplements thereto will
conform, in all material respects with the requirements
of the Act and the Rules and Regulations, and at the
Effective Time, the Registration Statement did not
include any untrue statement of a material fact or omit
to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading, and the Prospectus, as amended or
supplemented at the Closing Date, if applicable, will
not contain any untrue statement of a material fact or
omit to state a material fact required to be stated
therein or necessary to make the statements contained
therein, in the light of the circumstances under which
they were made, not misleading; except that the
foregoing does not apply to statements in or omissions
from the Registration Statement or the Prospectus, as
amended or supplemented if applicable, based upon
written information furnished to the Company by any
Underwriter through you specifically for use therein.
(c) The consolidated financial statements included
in the Registration Statement and Prospectus present
fairly the consolidated financial position of the
Company and its consolidated subsidiaries as at the
dates indicated and the results of their operations and
the changes in their cash flow for the periods
specified; said financial statements have been prepared
in conformity with generally accepted accounting
principles applied on a consistent basis during the
periods involved, except as indicated therein; and the
supporting schedule included in the Registration
Statement presents fairly the information required to
be stated therein.
(d) Since the respective dates as of which
information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (i)
there has been no material adverse change in the
condition, financial or otherwise, earnings, affairs or
business prospects of the Company and its subsidiaries
considered as a whole, whether or not arising in the
ordinary course of business and (ii) there have been no
material transactions entered into by the Company or
any of its subsidiaries other than those, including
acquisitions, in the ordinary course of business.
(e) The Company has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the State of Louisiana with corporate
power and authority to own, lease and operate its
properties and conduct its business as described in the
Registration Statement; and the Company is duly
qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which
it owns or leases properties or in which the conduct of
its business requires such qualification, except to the
extent that the failure to be so qualified or be in
good standing would not have a material adverse effect
on the Company and its subsidiaries considered as a
whole.
(f) Each of the subsidiaries of the Company has
been duly incorporated or formed and is validly
existing in good standing under the laws of the
jurisdiction of its incorporation or formation, with
full power and authority to own, lease and operate its
properties and conduct its business as described in the
Registration Statement and is duly qualified to
transact business and is in good standing in each
jurisdiction in which it owns or leases properties or
in which the conduct of its business requires such
qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a
material adverse effect on the Company and its
subsidiaries considered as a whole; all of the issued
and outstanding capital stock of each corporate
subsidiary has been duly authorized and validly issued
and is fully paid and nonassessable and, except as set
forth in Schedule II hereto, all of the outstanding
capital stock or partnership interests of each
subsidiary are owned by the Company, directly or
through subsidiaries, free and clear of any mortgage,
pledge, lien, encumbrance or claim.
(g) Neither the Company nor any of its
subsidiaries is (i) in violation of its or any of their
charters, by-laws, partnership agreements or other
governing documents or (ii) in default in the
performance or observance of any obligation, agreement,
covenant or condition contained in any material
contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which it or any of them is
a party or by which it or any of them or their
properties may be bound (except in the case of defaults
that, individually or in the aggregate, would not have
a material adverse effect on the condition, financial
or otherwise, earnings, affairs or business prospects
of the Company and its subsidiaries considered as a
whole); no consent, approval, authorization or order of
any court or governmental authority or agency is
required for the consummation by the Company of the
transactions contemplated by this Agreement, except
such as may be required under the Act, the 1939 Act,
the Rules and Regulations or state securities or blue
sky laws; and the execution and delivery of this
Agreement, the Indenture and the Notes and the
consummation of the transactions contemplated herein
and therein will not conflict with or constitute a
breach of, or default under, or result in the creation
or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its
subsidiaries pursuant to, any material contract,
indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them
may be bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject,
nor will such action result in any violation of or
conflict with the provisions of the charter or by-laws
of the Company or any law, administrative regulation or
administrative or court decree.
(h) The Company and its subsidiaries possess
adequate certificates, authorities, licenses or permits
issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the
business now operated by them, and neither the Company
nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification
of any such certificate, authority, license or permit
that, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would
materially adversely affect the condition, financial or
otherwise, earnings, affairs or business prospects of
the Company and its subsidiaries considered as a whole.
(i) Except as set forth in the Prospectus, there
is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign,
now pending or, to the knowledge of the Company,
threatened against or affecting the Company or any of
its subsidiaries, that might result in any material
adverse change in the condition, financial or
otherwise, earnings, affairs or business prospects of
the Company and its subsidiaries considered as a whole,
or might materially and adversely affect the offering
of the Notes; and there are no material contracts or
other documents that are required to be filed as
exhibits to the Registration Statement by the Act or by
the Rules and Regulations that have not been so filed.
(j) The Company and each of its subsidiaries has
good and marketable title in fee simple to all real
property and good and marketable title to all personal
property owned by it and necessary in the conduct of
the business of the Company or such subsidiary in each
case free and clear of all liens, encumbrances and
defects except (i) such as are referred to in the
Prospectus or (ii) such as do not individually or in
the aggregate have a material adverse effect on the
Company and its subsidiaries taken as a whole.
(k) This Agreement has been duly authorized,
executed and delivered by the Company and is a valid
and binding agreement of the Company, except as rights
to indemnity hereunder may be limited by applicable law
and except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting enforcement of
creditors' rights generally or by general equity
principles.
(l) The Indenture has been duly qualified under
the 1939 Act, has been duly authorized and, when
executed and delivered by the Company, will be a valid
and binding agreement of the Company enforceable
against the Company in accordance with its terms,
except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting enforcement of
creditors' rights generally or by general equity
principles.
(m) The Notes have been duly and validly
authorized by the Company for issuance and sale to the
Underwriters pursuant to this Agreement and, when
executed by the Company and authenticated by the
Trustee in accordance with the Indenture and delivered
to the Underwriters against payment therefor in
accordance with the terms hereof, will have been
validly issued and delivered, free of any preemptive or
similar rights, and will constitute valid and binding
obligations of the Company, will be entitled to the
benefits of the Indenture and enforceable against the
Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws
relating to or affecting the enforcement of creditors'
rights generally or by general equity principles. The
Notes conform, or will conform, to the description
thereof in the Registration Statement and the
Prospectus. Neither the filing of the Registration
Statement nor the offering or sale of the Notes as
contemplated by this Agreement gives rise to any
rights, other than those that have been duly waived or
satisfied, for or relating to the registration of any
securities of the Company. The capitalization of the
Company as of the date of the most recent balance
sheet included in the Prospectus is as set forth in the
Prospectus. The Company has all requisite corporate
power and authority to issue, sell and deliver the
Notes in accordance with and upon the terms and
conditions set forth in this Agreement and in the
Registration Statement and Prospectus. All corporate
action required to be taken by the Company for the
authorization, issuance, sale and delivery of the Notes
to be sold by the Company hereunder has been validly
and sufficiently taken.
SECTION 3. Purchase, Sale and Delivery of Notes.
On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and
conditions herein set forth, the Company agrees to issue and
sell to the Underwriters, and each Underwriter agrees,
severally and not jointly, to purchase from the Company at a
purchase price of 99.375% of the principal amount per Note
(the "purchase price per Note") plus accrued interest, if
any, from December 9, 1996 to the date of payment and
delivery, the respective principal amount of Notes set forth
opposite such Underwriter's name in Schedule I hereto.
The Notes to be purchased by each Underwriter
hereunder will be represented by one or more definitive
Global Certificates in book-entry form which will be
deposited by or on behalf of the Company with The Depository
Trust Company ("DTC") or its designated custodian. The
Company will deliver the Notes to NationsBanc Capital
Markets, Inc. ("NationsBanc") for the account of each
Underwriter, against payment by or on behalf of such
underwriter of the purchase price therefor by wire transfer
of immediately available funds to the account specified by
the Company, by causing DTC to credit the Notes to the
account of NationsBanc at DTC. The Company will cause the
certificates representing the Notes to be made available to
NationsBanc for checking at least twenty-four hours prior to
the Closing Date at the office of DTC or its designated
custodian. The Closing Date and time shall be 10:00 a.m.,
New Orleans time, on December 9, 1996, or at such other date
and time not later than seven full business days thereafter
as you and the Company determine. The documents (other than
the certificate(s) representing the Notes) to be delivered
on the Closing Date will be delivered at the offices of
Jones, Walker, Waechter, Poitevent, Carrere & Denegre
L.L.P., and the Notes will be delivered at the office of DTC
or its designated custodian.
SECTION 4. Offering by Underwriters. The several
Underwriters will offer the Notes for sale to the public on
the terms as set forth in the Prospectus as amended or
supplemented.
SECTION 5. Covenants of the Company. The Company
covenants and agrees with the several Underwriters that:
(a) The Company will prepare a final prospectus
supplement with respect to the Notes in a form approved
by you and will file such prospectus supplement
pursuant to Rule 424(b) under the Act by the time
required pursuant to Rule 424(b) under the Act. The
Company will advise you promptly of the filing or
effectiveness of any amendment or supplement to the
Registration Statement or the Prospectus, the receipt
of any comments from the Commission with respect to the
Registration Statement or the Prospectus or any
amendment or supplement thereto, and of receipt of
notification of the institution by the Commission or
any State of any stop order proceedings in respect of
the Registration Statement or the initiation or
threatening of any proceeding for such purpose, and
will use every reasonable effort to prevent the
issuance of any such stop order and to obtain as soon
as possible its lifting, if issued. The Company will
also notify you promptly of any request by the
Commission for any amendment of or supplement to the
Registration Statement or the Prospectus or for
additional information; the Company will prepare and
file with the Commission, promptly upon your request,
any amendments or supplements to the Registration
Statement or the Prospectus which, in your opinion, may
be necessary or advisable in connection with the
distribution of the Notes; and the Company will not
file any amendment or supplement to the Registration
Statement or the Prospectus or file any document under
the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), before the termination of the offering
of the Notes by the Underwriters if such document would
be deemed to be incorporated by reference into the
Prospectus, which filing is not consented to by you
after reasonable notice thereof, such consent not to be
unreasonably withheld or delayed.
(b) If, during such period of time after the first
date of the public offering of the Notes as in the
opinion of counsel for the Underwriters a prospectus
relating to the Notes is required by law to be
delivered in connection with sales by an Underwriter or
dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would, in
the judgment of the Underwriters and their counsel,
include an untrue statement of a material fact, or omit
to state a material fact necessary to make the
statements therein, in light of the circumstances under
which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply
with the Act or any other law, the Company promptly
will prepare and file with the Commission an amendment
or supplement that will correct such statement or
omission or an amendment that will effect such
compliance and will notify you and, upon your request,
prepare and furnish without charge to each Underwriter
and to any dealer in the Notes as many copies as you
may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus that will
correct such statement or omission or effect such
compliance.
(c) The Company will make generally available to
the Company's security holders (and shall deliver to
you), in the manner contemplated by Rule 158(b) under
the Act or otherwise, as soon as practicable but in any
event not later than 45 days after the end of its
fiscal quarter in which the first anniversary date of
the Effective Date occurs (or not later than 90 days
after the end of such fiscal quarter if such fiscal
quarter is the last fiscal quarter of the fiscal year),
an earnings statement satisfying the requirements of
Section 11(a) of the Act and the Rules and Regulations
and covering a period of at least 12 consecutive months
beginning after the Effective Date.
(d) The Company will deliver to each of you as
many conformed copies of the Registration Statement (as
originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by
reference therein) and of the Prospectus as you may
reasonably request, including a conformed copy of the
Registration Statement and each amendment thereto for
each of the Underwriters. In addition, the Company
will deliver to Baker & Botts, L.L.P. one original
executed version of the Registration Statement and each
amendment thereto, including exhibits.
(e) The Company will endeavor, in cooperation with
you, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other
jurisdictions of the United States as you may
designate, and will maintain such qualifications in
effect for as long as may be required for the
distribution of the Notes.
(f) During the period of three years hereafter,
the Company will furnish to you, and upon request to
each of the other Underwriters, as soon as practicable
after the end of each fiscal year, a copy of its annual
report to stockholders for such year, and the Company
will furnish to you as soon as available, a copy of
each report or definitive proxy statement of the
Company filed with the Commission under the Exchange
Act or mailed to stockholders.
(g) Until the termination of the offering of the
Notes, the Company shall timely file all documents and
amendments to previously filed documents required to be
filed by it pursuant to Section 12, 13, 14 or 15(d) of
the Exchange Act.
(h) The Company shall apply the net proceeds from
the sale of the Notes as set forth in the Prospectus.
SECTION 6. Conditions of the Obligations of the
Underwriters. The obligations of the several Underwriters
to purchase and pay for the Notes on the Closing Date will
be subject to the accuracy of the representations and
warranties on the part of the Company herein as of the date
hereof and as of the Closing Date with the same force and
effect as if made as of that date, to the performance by the
Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Registration Statement shall have become
effective (or if a post-effective amendment is required
to be filed under the Act, such post-effective
amendment shall have become effective) not later than
5:00 p.m., New York time, on the date of this
Agreement, or such later time or date as shall have
been consented to by you; and prior to the Closing
Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no
proceedings for that purpose shall have been
instituted, or to the knowledge of the Company or you,
shall be contemplated by the Commission.
(b) You shall not have advised the Company that
the Registration Statement or Prospectus, or any
amendment or supplement thereto, contains an untrue
statement of fact or omits to state a fact which, you
have concluded, is material and in the case of an
omission is required to be stated therein or is
necessary to make the statements therein not
misleading.
(c) You shall have received a favorable opinion of
Jones, Walker, Waechter, Poitevent, Carrere & Denegre,
L.L.P., counsel for the Company ("Jones, Walker"),
dated the Closing Date, to the effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of Louisiana with
corporate power and authority to own, lease and
operate its properties and conduct its business as
described in the Registration Statement; and, to
such counsel's knowledge after due inquiry, the
Company is duly qualified as a foreign corporation
to transact business and is in good standing in
each jurisdiction in which it owns or leases
property or in which the conduct of its business
requires such qualification, except to the extent
that the failure to be so qualified or be in good
standing would not have a material adverse effect
on the Company and its subsidiaries considered as
a whole.
(ii) Each of the subsidiaries of the Company
listed on Schedule III hereto (the "Significant
Subsidiaries") has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the jurisdiction of its
incorporation, has corporate power and authority
to own, lease and operate its properties and
conduct its business as described in the
Registration Statement and, to such counsel's
knowledge, is duly qualified as a foreign
corporation to transact business and is in good
standing in each jurisdiction in which it owns or
leases properties or in which the conduct of its
business requires such qualification, except to
the extent that the failure to be so qualified or
be in good standing would not have a material
adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or
business prospects of the Company and its
subsidiaries considered as a whole; all of the
issued and outstanding capital stock of each
Significant Subsidiary is held of record by the
Company or a wholly owned subsidiary of the
Company and has been duly authorized and validly
issued and is fully paid and non-assessable, and
all of such capital stock, to their knowledge
after due inquiry, is owned by the Company or a
wholly owned subsidiary of the Company free and
clear of any mortgage, pledge, lien, encumbrance,
claim or equity (other than those mortgages,
pledges, liens, encumbrances, claims or equities
specifically noted in such opinion).
(iii) All of the outstanding shares of
capital stock of the Company have been duly
authorized and are validly issued, fully paid and
nonassessable. To such counsel's knowledge after
due inquiry, neither the filing of the
Registration Statement nor the offering or sale of
the Notes as contemplated by this Agreement gives
rise to any rights, other than those which have
been waived or satisfied, for or relating to the
registration of any securities of the Company or
any of its subsidiaries and, to their knowledge,
no person or entity (other than the Underwriters)
has the right, contractual or otherwise, to cause
the Company to sell or otherwise issue to such
person or entity, or permit such person or entity
to underwrite the sale of, any of the Notes. The
authorized capital stock of the Company is as set
forth in the Prospectus, and the Notes conform as
to legal matters to the description thereof
contained in the Prospectus. The Company has all
requisite corporate power and authority to issue,
sell and deliver the Notes in accordance with and
upon the terms and conditions set forth in this
Agreement and in the Registration Statement and
Prospectus.
(iv) This Agreement has been duly authorized,
executed and delivered by the Company. The courts
of Louisiana will give effect to the choice of law
provisions of this Agreement.
(v) The Indenture has been duly authorized,
executed and delivered by the Company and has been
duly qualified under the 1939 Act. The courts of
Louisiana will give effect to the choice of law
provisions of the Indenture applicable to the
Indenture and the Notes.
(vi) The Notes have been duly authorized and
executed by the Company for issuance and sale to
the Underwriters.
(vii) The Registration Statement is effective
under the Act and, to their knowledge after due
inquiry, no stop order suspending the
effectiveness of the Registration Statement has
been issued under the Act or proceedings therefor
initiated or threatened by the Commission. All
required filings by the Company under Rule 424(b)
of the Rules and Regulations with respect to the
Notes have been timely made.
(viii) Statements set forth in the Prospectus
under the headings "Description of the Notes" and
"Description of Debt Securities," in the
Registration Statement in Item 15, under the
headings "Legal Proceedings" and "Regulation" in
the Company's Annual Report on Form 10-K for the
fiscal year ended October 31, 1995, and under the
heading "Legal Proceedings" in each of the
Company's Quarterly Reports on Form 10-Q filed
with the Commission since that time, which are
incorporated by reference into the Prospectus,
insofar as such statements constitute a summary of
the legal matters, documents or proceedings
referred to therein, fairly present the
information called for with respect to such legal
matters, documents and proceedings.
(ix) To such counsel's knowledge after due
inquiry, no consent, approval, authorization or
order of any court or governmental authority or
agency is required in connection with the
transactions contemplated by this Agreement,
except such as may be required under the Act, the
1939 Act, the Rules and Regulations or state
securities or Blue Sky laws; and, to their
knowledge after due inquiry, the execution and
delivery of this Agreement, the Notes and the
Indenture and the consummation of the transactions
contemplated herein will not conflict with or
constitute a breach of, or default under, or
result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant
to, any material contract, indenture, mortgage,
loan agreement, note, lease or other instrument
known to such counsel to which the Company or any
of its subsidiaries is a party or by which it or
any of them may be bound or to which any of the
property or assets of the Company or any of its
subsidiaries is subject; nor will such action
result in any violation of the provisions of the
charter or by-laws of the Company, or any law,
administrative regulation or administrative or
court decree known by such counsel to be
applicable to the Company.
(x) To such counsel's knowledge after due
inquiry, there are no legal or governmental
proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or
to which any of the properties of the Company is
subject that are required to be described, in the
Registration Statement or the Prospectus and are
not so described or any material contracts or
other documents that are required to be described
in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration
Statement that are not so described or filed as
required; and
(xi) The Registration Statement and any
further amendments thereto made by the Company at
the time the Registration Statement and each
amendment thereto became effective and the
prospectus and any amendment or supplement
thereto, on the date of filing thereof with the
Commission (except that in each case no opinion
need be expressed as to the financial statements,
financial statement schedule or notes to such
financial statements and other financial and
statistical data contained therein) and the Form
T-1 complied as to form in all material respects
with the applicable requirements of the Act and
the Rules and Regulations and the 1939 Act and the
rules and regulations thereunder. Each document
incorporated by reference in the Registration
Statement as filed under the Exchange Act complied
when so filed as to form in all material respects
with the applicable requirements of the Exchange
Act and the rules and regulations of the
Commission thereunder (except that no opinion need
be expressed as to the financial statements or
notes thereto and other financial or statistical
data contained therein). The Company has
satisfied the conditions for the use of Form S-3
set forth in the general instructions thereto.
Such counsel shall also state that they have no
reason to believe that (i) the Registration Statement,
as of the Effective Time, or any amendment thereto, at
the time it became effective, including in each case
any document filed under the Exchange Act and
incorporated by reference therein, contained any untrue
statement of a material fact or omitted to state any
material fact required to be stated therein or
necessary in order to make the statements therein not
misleading, or (ii) the Prospectus or any supplement or
amendment thereto, including in each case any document
filed under the Exchange Act and incorporated by
reference therein, on such Closing Date or at the time
such Prospectus or supplement or amendment thereto was
issued contains or contained any untrue statement of a
material fact or omits or omitted to state any material
fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not
misleading.
Jones, Walker shall be entitled to rely on the
opinion of Henican James & Cleveland in rendering the
opinions expressed in (ii) with respect to Empresas Stewart
Funeraria, Inc., in (vii) with respect to litigation
involving Osiris Holding Co., in the second clause of (ix)
with respect to the Company's four revolving credit
agreements described in the Prospectus and the Company's
agreements with the holders of its 6.04% Senior Notes and
its Senior Notes, Series A, B and C. Any opinions of Jones,
Walker or Henican James & Cleveland with respect to
litigation involving the Company, when such litigation is
not being handled by the firm rendering the opinion, may be
based solely upon discussions with the law firm that has
been retained by the Company to handle the litigation.
(d) You shall have received from Baker & Botts,
L.L.P., counsel for the Underwriters, an opinion, dated
such Closing Date, with respect to the matters set
forth in (iv) (excluding the last sentence), (v)
(excluding the last sentence), (vi) and (viii) (but
only as to the statements in the Prospectus under
"Description of Notes"), with respect to the
enforceability of this Agreement, the Indenture and the
Notes (containing such exceptions as you shall
approve), and with respect to the matters set forth in
(xi) (excluding the last sentence) and to the effect of
the first unnumbered paragraph following numbered
paragraph (xi) of subsection (c) of this Section.
With respect to the penultimate unnumbered
paragraph of subsection (c) above and the similar
provision of subsection (d) above, Jones, Walker,
Waechter, Poitevent, Carrere & Denegre, L.L.P. and
Baker & Botts, L.L.P. may state that their opinions and
beliefs are based upon their participation in the
preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto
and review and discussion of the contents thereof, but
is without independent check or verification except as
specified.
(e) At the Closing Date, there shall not have
been, since the date of this Agreement or since the
respective dates as of which information is given in
the Registration Statement, any material adverse change
in the condition, financial or otherwise, earnings,
business affairs or business prospects of the Company
and its subsidiaries considered as a whole, whether or
not arising in the ordinary course of business, and you
shall have received a certificate of an executive
officer of the Company, dated as of the Closing Date,
to the effect that (i) the representations and
warranties of the Company contained in Section 2 are
true and correct with the same force and effect as
though expressly made on and as of the Closing Date,
(ii) the Company has performed or complied with all
agreements and satisfied all conditions on its part to
be performed or satisfied at or prior to the Closing
Date and (iii) no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
initiated or threatened by the Commission or any State.
(f) You shall have received from Coopers & Lybrand
L.L.P., independent public accountants, two letters,
the first delivered the day of but prior to the
execution of, and dated the date of, this Agreement and
the other dated the Closing Date, addressed to the
Underwriters (with conformed copies for each of the
Underwriters), in form and substance satisfactory to
you, to the effect that:
(i) They are independent public accountants
with respect to the Company and its subsidiaries
within the meaning of the Act and the Rules and
Regulations.
(ii) In their opinion, the consolidated
financial statements and supporting schedule of
the Company and its subsidiaries examined by them
and included or incorporated by reference in the
Registration Statement comply as to form in all
material respects with the applicable accounting
requirements of the Act and the Rules and
Regulations with respect to registration
statements on Form S-3 and the Exchange Act and
the rules and regulations promulgated thereunder
(the "Exchange Act Regulations").
(iii) They have performed specified
procedures, not constituting an audit, including a
reading of the latest available interim financial
statements of the Company and its indicated
subsidiaries, a reading of the minute books of the
Company and such subsidiaries since the end of the
most recent fiscal year with respect to which an
audit report has been issued, inquiries of and
discussions with certain officials of the Company
and such subsidiaries responsible for financial
and accounting matters with respect to the
unaudited consolidated financial statements
included or incorporated by reference in the
Registration Statement and Prospectus and the
latest available interim unaudited financial
statements of the Company and its subsidiaries in
accordance with Statement of Financial Accounting
Standards No. 71, and such other inquiries and
procedures as may be specified in such letters,
and on the basis of such inquiries and procedures
nothing came to their attention that caused them
to believe that: (A) the unaudited consolidated
financial statements of the Company and its
subsidiaries included or incorporated by reference
in the Registration Statement and Prospectus do
not comply as to form in all material respects
with the applicable accounting requirements of the
Exchange Act and the Exchange Act Regulations or
were not fairly presented in conformity with
generally accepted accounting principles in the
United States applied on a basis substantially
consistent with that of the audited financial
statements included or incorporated by reference
therein, or (B) at a specified date not more than
five days prior to the date of such letters, there
was any change in the consolidated capital stock
or any increase in consolidated long-term debt of
the Company and its subsidiaries or any decrease
in the consolidated net current assets or net
assets of the Company and its subsidiaries or any
increases or decreases in any other items
specified by the Underwriters, in each case as
compared with the amounts shown on the most recent
balance sheet of the Company and its subsidiaries
included or incorporated by reference in the
Registration Statement and Prospectus or, during
the period from the date of such balance sheet to
a specified date not more than five days prior to
the date of such letters, there were any
decreases, as compared with the corresponding
period in the preceding year, in consolidated net
revenues or the total or per share amounts of
consolidated net income of the Company and its
subsidiaries or any increases or decreases in any
other items specified by the Underwriters, except
in each such case as set forth in or contemplated
by the Registration Statement and Prospectus or
except for such exceptions enumerated in such
letters as shall have been agreed to by the
Underwriters and the Company.
(iv) In addition to the examination referred
to in their report included or incorporated by
reference in the Registration Statement and the
Prospectus, and the limited procedures referred to
in clause (iii) above, they have carried out
certain other specified procedures, not
constituting an audit, with respect to certain
amounts, percentages and financial information
which are included or incorporated by reference in
the Registration Statement and Prospectus and
which are specified by the Underwriters, and have
found such amounts, percentages and financial
information to be in agreement with the relevant
accounting, financial and other records of the
Company and its subsidiaries identified in such
letters.
(g) At the Closing Date, counsel for the
Underwriters shall have been furnished with such other
documents and opinions as they may reasonably require.
(h) At the time of the Closing, the Notes shall
have a rating of at least Baa3 by Moody's Investors
Service, Inc. and BBB by Standard & Poor's Ratings
Services, and the Company shall have delivered to the
Underwriters a letter, dated the Closing Date, from
each such rating agency or other evidence satisfactory
to the Underwriters, confirming such ratings. Since
the Effective Date, there shall not have occurred any
downgrading with respect to any debt securities of the
Company or any of its subsidiaries by any "nationally
recognized statistical rating organization" as that
term is defined by the Commission for purposes of Rule
436(g)(2) under the Act or any public announcement that
any such organization has under surveillance or review
its rating of any such debt securities (other than an
announcement with no implication of a possible
downgrading of such rating).
All such opinions, certificates, letters and
documents shall be in compliance with the provisions
hereof only if they are satisfactory in form and
substance to you and to counsel for the Underwriters in
your and such counsel's reasonable discretion. The
Company shall furnish to you conformed copies of such
opinions, certificates, letters and other documents in
such number as you shall reasonably request. If any of
the conditions specified in this Section 6 shall not
have been fulfilled when and as required by this
Agreement, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any
time prior to, the Closing Date, by you. Any such
cancellation shall be without liability of the
Underwriters to the Company. Notice of such
cancellation shall be given to the Company in writing,
or by telegraph or telephone and confirmed in writing.
SECTION 7. Payment of Expenses. The Company will
pay all costs, expenses, fees and taxes incident to (i) the
preparation by the Company, printing, filing and
distribution under the Act of the Registration Statement
(including financial statements and exhibits), the
Prospectus, each preliminary prospectus and all amendments
and supplements to any of them prior to or during the period
specified in Section 5(b), (ii) the preparation, printing
and delivery of this Agreement, the Indenture, the Statement
of Eligibility and Qualification of the Trustee on Form T-1,
Preliminary and Supplemental Blue Sky Memoranda, the Notes
and all other agreements, memoranda, correspondence and
other documents printed and delivered in connection with the
offering of the Notes, (iii) the registration with the
Commission, and the issuance by the Company of the Notes
(iv) the registration or qualification of the Notes for
offer and sale under the securities or Blue Sky laws of the
several states as described in Section 5(e) (including the
reasonable fees and disbursements of your counsel relating
to such registration or qualification), (v) any fees or
expenses relating to the use of book-entry notes, (vi) the
fees, costs and charges of the Trustee, including the fees
and disbursements of counsel for the Trustee, (vii) the fees
and expenses of rating agencies, and (viii) all other costs
and expenses incident to the performance by the Company of
its other obligations under this Agreement.
If this Agreement is terminated by you in
accordance with the provisions of Section 6 or Section
10(i), the Company shall reimburse you for all of your
out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 8. Indemnification and Contribution. (a)
The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all
losses, claims, damages, liabilities and judgments
(including, without limiting the foregoing, the reasonable
legal and other expenses incurred in connection with any
action, suit or proceeding or any claim asserted) arising
out of or caused by any untrue statement or alleged untrue
statement in Section 2 hereof or any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or any Preliminary
Prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities
or expenses are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by any
Underwriter through you expressly for use therein. This
indemnity agreement will be in addition to any liability
which the Company may otherwise have to the persons referred
to above in this Section 8(a).
(b) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, the
directors of the Company, the officers of the Company who
sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15
of the Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages, liabilities and
judgments (including, without limiting the foregoing, the
reasonable legal and other expenses incurred in connection
with any action, suit or proceeding or any claim asserted)
arising out of or caused by any untrue statement or alleged
untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or
supplemented if the Company shall have furnished any
amendments or supplements thereto) or any Preliminary
Prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading,
but only with reference to and only to the extent of
information furnished to the Company in writing by such
Underwriter through you expressly for use in the
Registration Statement, the Prospectus, any amendment or
supplement thereto, or any Preliminary Prospectus.
(c) In case any action or proceeding (including
any governmental or regulatory investigation or proceeding)
shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (hereinafter called the
indemnified party) shall promptly notify the person against
whom such indemnity may be sought (hereinafter called the
indemnifying party) in writing and the indemnifying party
shall be entitled to assume the defense thereof and, upon
request of the indemnified party, shall assume the defense
thereof, including the employment of counsel reasonably
satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may
designate and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such action or
proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel
or (ii) the named parties to any such proceeding (including
any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same
jurisdiction, be liable for (a) the reasonable fees and
expenses of more than one separate firm (in addition to one
local counsel for each jurisdiction involved) for all
Underwriters and all persons, if any, who control
Underwriters within the meaning of either Section 15 of the
Act or Section 20 of the Exchange Act and (b) the reasonable
fees and expenses of more than one separate firm (in
addition to one local counsel for each jurisdiction
involved) for the Company, its directors, its officers who
sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either such
Section and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons
of Underwriters, such firm shall be designated in writing by
NationsBanc Capital Markets, Inc. In the case of any such
separate firm for the Company, and such directors, officers
and control persons of the Company, such firm shall be
designated in writing by the Company. The indemnifying party
shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with
such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of
such proceeding.
(d) If the indemnification provided for in this
Section 8 is unavailable to an indemnified party in respect
of any losses, claims, damages, liabilities or judgments
referred to therein, then each indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities and
expenses (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one
hand and the Underwriter on the other from the offering of
the Notes or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault
of the Company on the one hand and the Underwriter on the
other in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable
considerations. The relative benefits received by the
Company on the one hand and the Underwriter on the other
shall be deemed to be in the same proportions as the total
net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting
discounts and commissions received by the Underwriter, in
each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company on the one
hand and the Underwriter on the other shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission
to state a material fact relates to information supplied by
the Company or by the Underwriter and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant
to Section 8(d) were determined by pro rata allocation or by
any other method of allocation which does not take account
of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of Section
8(d), in no event shall any Underwriter be required to
contribute any amount in excess of the amount by which the
total price at which the Notes underwritten by it and
distributed to the public were offered to the public exceeds
the amount of any damages which each Underwriter has
otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to Section 8(d) are several in
proportion to the respective number of Notes set forth
opposite their names in Schedule I hereto.
SECTION 9. Representations, Warranties and
Agreements to Survive Delivery. All representations,
warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company
submitted hereto, including indemnity and contribution
agreements, shall remain operative and in full force and
effect, regardless of any termination of this Agreement, or
any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter by or on behalf of
the Company, its officers or directors, and shall survive
acceptance and payment for the Notes hereunder.
SECTION 10. Effectiveness of Agreement and
Termination. This Agreement shall become effective upon
execution and delivery hereof by the parties hereto.
This Agreement may be terminated at any time prior
to the Closing Date by NationsBanc Capital Markets, Inc.
upon the giving of written notice of such termination to the
Company, if at or prior to the Closing Date (i) the Company
shall have failed, refused or been unable to perform any
agreement on its part to be performed hereunder, (ii) any
other condition of the Underwriters' obligation hereunder is
not fulfilled, (iii) there has been, since the respective
dates as of which information is given in the Registration
Statement, any material adverse change in the condition,
financial or otherwise, earnings, business affairs or
business prospects of the Company and its subsidiaries
considered as a whole, whether or not arising in the
ordinary course of business, (iv) there has occurred any
outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national
emergency or war, or other calamity or crisis or material
change in existing financial, political, economic or
securities market conditions, the effect of which is such as
to make it, in the judgment of NationsBanc Capital Markets,
Inc., impracticable or inadvisable to market the Notes in
the manner contemplated in the Prospectus or enforce
contracts for the sale of the Notes, (v) reporting of bid
and asked prices of the Common Stock of the Company has been
suspended by the Commission or by the National Association
of Securities Dealers, Inc. or trading generally on either
the American Stock Exchange or the New York Stock Exchange
has been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities
have been required, by either of said exchanges or by order
of the Commission or any other governmental authority, or if
a banking moratorium has been declared by Federal, New York
or Louisiana authorities or (vi) if there shall have come to
the attention of the Underwriters any facts that would cause
the Underwriters to believe that the Prospectus (as amended
or supplemented), at the time it was required to be
delivered to a purchaser of Notes, included an untrue
statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in
light of the circumstances existing at the time of such
delivery, not misleading. In the event of any such
termination, the provisions of Section 7, the indemnity
agreement and contribution provisions set forth in Section
8, and the provisions of Sections 9 and 14 shall remain in
effect.
SECTION 11. Default. If, on the Closing Date, any
one or more of the Underwriters shall fail or refuse to
purchase Notes that it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount
of Notes which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of the Notes to
be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the principal
amount of Notes set forth opposite their respective names in
Schedule I bears to the aggregate principal amount of Notes
set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may
specify, to purchase the Notes which such defaulting
Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the
principal amount of Notes that any Underwriter has agreed to
purchase pursuant to Section 3 be increased pursuant to this
Section 11 by an amount in excess of one-ninth of such
principal amount of Notes without the written consent of
such Underwriter. If, on the Closing Date any Underwriter
or Underwriters shall fail or refuse to purchase Notes and
the aggregate principal amount of Notes with respect to
which such default occurs is more than one-tenth of the
aggregate principal amount of Notes to be purchased on such
date, and arrangements satisfactory to you and the Company
for the purchase of such Notes are not made within 36 hours
after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or
the Company. In any such case either you or the Company
shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
SECTION 12. Notices. All notices and other
communications hereunder shall be in writing and shall be
deemed to have been duly given when received via mail or any
standard form of telecommunication. Notices to the
Underwriters shall be directed to you c/o NationsBanc
Capital Markets, Inc., 100 North Tryon Street, Charlotte,
North Carolina 28255; Attention: Syndicate; notices to the
Company shall be directed to it at Stewart Enterprises,
Inc., 110 Veterans Boulevard, Metairie, Louisiana 70005, to
the attention of the Chief Executive Officer with a copy to
the Edward N. George, Henican, James & Cleveland, 111
Veterans Boulevard, Suite 1200, Metairie, Louisiana 70005.
SECTION 13. Parties. This Agreement shall inure
to the benefit of and be binding upon the Company, the
Underwriters, any controlling persons referred to herein and
their respective successors and assigns. Nothing expressed
or mentioned in this Agreement is intended or shall be
construed to give any other person, firm or corporation any
legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the
parties hereto and respective successors and said
controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Notes
from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
SECTION 14. Governing Law. This Agreement and all
the rights and obligations of the parties shall be governed
by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed
in such State.
This Agreement may be signed in two or more counterparts
each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same
instrument.
If the foregoing is in accordance with your
understanding of our agreement, please sign this Agreement
and return a counterpart hereof to us, whereupon this
instrument, along with all counterparts, will become a
binding agreement between the Underwriters and the Company
in accordance with its terms.
Very truly yours,
STEWART ENTERPRISES, INC.
By: /s/ Ronald H. Patron
________________________
Name: Ronald H. Patron
Title: Chief Financial Officer
President-Corporate Division
and Executive Vice President
Confirmed and Accepted, as of the date first above written:
NATTIONSBANC CAPITAL MARKETS, INC.
BEAR, STEARNS & CO. INC.
CITICORP SECURITIES, INC.
Acting severally on behalf of
themselves and the several
Underwriters named herein.
By: NATIONSBANC CAPITAL MARKETS, INC.
By: /s/ Thomas G. Mooney
______________________________
Name: Thomas G. Mooney
Title: Senior Vice President
SCHEDULE I
PRINCIPAL AMOUNT
OF NOTES
UNDERWRITER TO BE PURCHASED
NationsBanc Capital Markets, Inc. $ 34,000,000
Bear, Stearns & Co. Inc. $ 33,000,000
Citicorp Securities, Inc. $ 33,000,000
Total $ 100,000,000
STEWART ENTERPRISES, INC.
and
Citibank, n.a.,
as Trustee
________________
Indenture
Dated as of
December 1, 1996
Debt Securities
<PAGE>
Stewart Enterprises, Inc.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of December 1, 1996
________________
Section of
Trust Indenture Section(s)
of Act of 1939 Indenture
310 (a)(1) 609
(a)(2) 609
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 608, 610
311 (a) 613
(b) 613
(c) Not Applicable
312 (a) 701, 702(a)
(b) 702(b)
(c) 702(c)
313 (a) 703(a)
(b) 703(b)
(c) 703(c)
(d) 703(d)
314 (a) 704,1007
(b) Not Applicable
(c)(1) 103
(c)(2) 103
(c)(3) Not Applicable
(d) Not Applicable
(e) 103
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
316 (a)(1)(A) 502, 511
(a)(1)(B) 512
(a)(2) Not Applicable
(a)(last sentence) 101
(b) 508
(c) 105
317 (a)(1) 503
(a)(2) 504
(b) 1003
318 (a) 108
_____________
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
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
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
ARTICLE TWO Security Forms
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
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
ARTICLE EIGHTConsolidation, Merger And Sale Of Assets
SECTION 801. Company May Consolidate, Etc., Only
on Certain Terms..................................... 60
SECTION 802. Successor Person Substituted............... 60
ARTICLE NINESupplemental 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
ARTICLE TWELVE Sinking Funds
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 THIRTEENMeetings 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
<PAGE>
INDENTURE, dated as of December 1, 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;
(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.
"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.
"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.
"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 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:
(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.
"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 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.
"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.
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 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 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 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.
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.
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.
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:
"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 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 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 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;
(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;
(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.
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 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 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).
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 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 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 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 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.
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
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.
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.
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
(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 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
(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):
(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
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 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.
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 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.
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;
(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.
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.
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 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
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, 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 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 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
(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.
(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 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.
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 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 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.
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 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
(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 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.
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 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 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.
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.
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;
(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 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 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) 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 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,
(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 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
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.
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 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 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 Company 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 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.
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: /s/ Ronald H. Patron
_________________________
Name: Ronald H. Patron
Title: Chief Financial Officer
President- Corpoate Division
and Executive Vice President
CITIBANK, N.A.
[CORPORATE SEAL] By: /s/ Robert T. Kirchner
___________________________
Name: Robert T. Kirchner
Title: Vice President
STATE OF LOUISIANA
ss.
PARISH OF ORLEANS
On the 4th day of December, 1996, before me
personally came Ronald H. Patron, to me known, who, being by
me duly sworn, did depose and say that he is
Chief Financial Officer of STEWART ENTERPRISES, INC., one of
the entities described in and which executed the foregoing
instrument; that he 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 signed his name
thereto by like authority.
/s/ Dionne M. Rousseau
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK
ss.
COUNTY OF NEW YORK
On the 1st day of December, 1996, before me
personally came Robert T. Kirchner to me known, who, being by
me duly sworn, did depose and say that [he/she] is
Vice President 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.
/s/ Doris Ware
Notary Public
[NOTARIAL SEAL]
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.
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.
[1]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
**FOOTNOTES**
*To be dated no earlier than the Certification Date.
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, 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 ____________________________________
[FORM OF NOTE]
This Security is a Registered Security in global form within the
meaning of the Indenture hereinafter referred to and is registered in
the name of The Depository Trust Company, a New York corporation ("DTC")
or a nominee thereof. This Security may not be exchanged in whole or in
part for a Security in definitive registered form, and no transfer of
this Security in whole or in part may be registered in the name of any
Person other than DTC or its nominee, except in the limited
circumstances described in the Indenture.
Unless this certificate is presented by an authorized
representative of DTC to the Company (as defined below) or its agent for
registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch
as the registered owner hereof, Cede & Co., has an interest herein.
STEWART ENTERPRISES, INC.
6.70% Note Due 2003
No. $100,000,000 CUSIP No.: __________
Stewart Enterprises, Inc., a Louisiana corporation (hereinafter
called the "Company," which term shall include any successor under the
Indenture hereinafter referred to), for value received, hereby promises
to pay to Cede & Co., or registered assigns, the principal sum of
$100,000,000 (One Hundred Million Dollars) at the Company's office or
agency for said purpose in the Borough of Manhattan, the City of New
York on December 1, 2003, in such coin or currency of the United States
of America as at the time of payment is legal tender for the payment of
public and private debts, and to pay the interest thereon in like coin
or currency semi-annually on December 1 and June 1 of each year,
commencing June 1, 1997, on said principal sum at the rate of 6.70% per
annum at said office or agency from December 9, 1996 or from the most
recent Interest Payment Date to which interest on this Note has been
paid or duly provided for until payment of said principal sum has been
made or duly provided for. The interest so payable on any December 1 or
June 1 will, except as otherwise provided in the Indenture referred to
on the reverse hereof, be paid to the Person in whose name this Note is
registered at the close of business on the November 15 or May 15
preceding such December 1 or June 1, whether or not such day is a
Business Day; provided that interest may be paid, at the option of the
Company, if this Note is no longer in the form of a Registered Security
in global form, by mailing a check therefor payable to the registered
holder entitled thereto at his last address as it appears on the
Security Register. Interest on this Note shall be computed on the basis
of a 360-day year consisting of twelve 30-day months.
ADDITIONAL PROVISIONS OF THIS SECURITY ARE CONTAINED ON THE REVERSE
HEREOF AND SUCH PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT
AS THOUGH FULLY SET FORTH AT THIS PLACE.
This Security shall not be entitled to any benefit under the
Indenture hereinafter referred to, or become valid or obligatory for any
purpose, until the Trustee under the Indenture shall have signed the
form of certificate of authentication endorsed hereon.
In Witness Whereof, Stewart Enterprises, Inc. has caused this
Instrument to be duly executed.
Dated: STEWART ENTERPRISES, INC.
By:
[CORPORATE SEAL] Ronald H. Patron
Chief Financial Officer,
Attest: ______________________ President-Corporate Division
and
Kenneth C. Budde Executive Vice President
Secretary
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
CITIBANK, N.A., as Trustee
By:
Authorized Signatory
STEWART ENTERPRISES, INC.
6.70% Note due 2003
This Security is one of a duly authorized issue of debt securities
of the Company designated as its 6.70% Notes Due 2003 (the
"Securities"), limited to the aggregate principal amount of $100,000,000
(except as otherwise provided in the Indenture mentioned below), issued
or to be issued pursuant to an indenture dated as of December 1, 1996,
duly executed and delivered by the Company to Citibank, N.A., as trustee
(herein called the "Trustee," which term includes any successor trustee
under the Indenture) as the same shall be further amended and
supplemented from time to time as provided in the Indenture (as so
amended and supplemented, the "Indenture"). The terms of the Securities
include those in the Indenture. Reference is hereby made to the
Indenture and all other indentures supplemental thereto for a
description of the rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Company and the Holders of
the Securities. Capitalized terms used but not defined herein which are
defined in the Indenture have the meanings assigned to them in the
Indenture.
If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture. The Indenture provides that under certain
circumstances a declaration of acceleration and its consequences may be
rescinded and annulled by the Holders of a majority in principal amount
of the Outstanding Securities of the series.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations
of the Company and the rights of the Holders of the securities of each
series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal
amount of the Outstanding Securities of all series to be affected
(acting as one class). The Indenture provides that the Holders of a
majority in principal amount of the Outstanding Securities of any series
(or, in certain cases, of all Outstanding Securities) may, on behalf of
the Holders of all the securities of such series (or, in certain cases,
of all securities under the Indenture) waive certain past defaults under
the Indenture. The Indenture also provides that the Holders of a
majority in principal amount of the Outstanding Securities of all series
affected (acting as one class) may waive compliance by the Company with
certain restrictive provisions of the Indenture. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders and owners of this Security
and any Security issued in exchange or substitution hereof or upon
registration of transfer hereof, whether or not notation of such consent
or waiver is made upon this Security or such other Securities.
The Indenture contains provisions for the legal defeasance at any
time of the entire indebtedness of the Company on this Security upon
compliance by the Company with certain conditions set forth therein,
which provisions apply to this Security. Upon compliance with such
provisions, the Company shall be deemed to have paid and discharged the
entire indebtedness on this Security and the Company's obligation to pay
the principal of (and premium, if any) and interest on this Security
shall cease, terminate and be completely discharged.
The Indenture provides that no Holder of any Securities may enforce
any remedy under the Indenture except in the case of refusal or neglect
of the Trustee to act after notice of default and request by the Holders
of 25% in principal amount of Outstanding Securities in the series for
which a remedy is sought to be enforced and the offer to the Trustee of
reasonable indemnity.
The Securities do not have the benefit of any sinking fund
obligation and are not redeemable.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of
and interest on this Security at the place, times, and rate, and in the
currency, herein prescribed.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this
series of a different authorized denomination, as requested by the
Holder surrendering the same.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the
principal of (and premium, if any) and interest on this Security are
payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar
duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series, of
authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to surrender of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee,
may deem and treat the registered Holder hereof as the absolute owner of
this Security (whether or not this Security shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for
the purpose of receiving payment of, or on account of, the principal
hereof and interest hereon and for all other purposes, and neither the
Company nor the Trustee nor any agent of the Company or the Trustee
shall be affected by any notice to the contrary.
The Indenture and this Security shall be governed by and construed
in accordance with the laws of the State of New York.
